G.R. No.
123595 December 12, 1997 Casan were merely standing on the corner of Quezon Boulevard when Yu saw them on 27 August 1990.
SAMMY MALACAT y MANDAR, petitioner,
vs.
COURT OF APPEALS, and PEOPLE OF THE PHILIPPINES, respondents.
DAVIDE, JR., J.:
In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748 before the Regional Trial Court
(RTC) of Manila, Branch 5, petitioner Sammy Malacat y Mandar was charged with violating Section 3 of
Presidential Decree No. 1866, 2 as follows:
That on or about August 27, 1990, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully and knowingly keep, possess and/or acquire a hand grenade,
without first securing the necessary license and/or permit therefor from the proper authorities.
At arraignment3 on 9 October 1990, petitioner, assisted by counsel de oficio, entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A," "A-1," and "A-2," 4 while the
prosecution admitted that the police authorities were not armed with a search warrant nor warrant of arrest at the
time they arrested petitioner.5
At trial on the merits, the prosecution presented the following police officers as its witnesses: Rodolfo Yu, the
arresting officer; Josefino G. Serapio, the investigating officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the Integrated National Police, Police
Station No. 3, Quiapo, Manila, testified that on 27 August 1990, at about 6:30 p.m., in response to bomb threats
reported seven days earlier, he was on foot patrol with three other police officers (all of them in uniform) along
Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store at Plaza Miranda. They chanced upon two
groups of Muslim-looking men, with each group, comprised of three to four men, posted at opposite sides of the
corner of Quezon Boulevard near the Mercury Drug Store. These men were acting suspiciously with "[t]heir eyes.
. . moving very fast."6
Yu and his companions positioned themselves at strategic points and observed both groups for about thirty
minutes. The police officers then approached one group of men, who then fled in different directions. As the
policemen gave chase, Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu found a
fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's companion, police officer Rogelio
Malibiran, apprehended Abdul Casan from whom a .38 caliber revolver was recovered. Petitioner and Casan
were then brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the grenade and
thereafter gave it to his commander.8
On cross-examination, Yu declared that they conducted the foot patrol due to a report that a group of Muslims
was going to explode a grenade somewhere in the vicinity of Plaza Miranda. Yu recognized petitioner as the
previous Saturday, 25 August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen chased petitioner and his
companions; however, the former were unable to catch any of the latter. Yu further admitted that petitioner and
Although they were not creating a commotion, since they were supposedly acting suspiciously, Yu and his
companions approached them. Yu did not issue any receipt for the grenade he allegedly recovered from
petitioner.9
Josefino G. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner and a certain Abdul Casan
were brought in by Sgt. Saquilla 10 for investigation. Forthwith, Serapio conducted the inquest of the two
suspects, informing them of their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio's advice, petitioner and Casan manifested their willingness to answer questions even
without the assistance of a lawyer. Serapio then took petitioner's uncounselled confession (Exh. "E"), there being
no PAO lawyer available, wherein petitioner admitted possession of the grenade. Thereafter, Serapio prepared
the affidavit of arrest and booking sheet of petitioner and Casan. Later, Serapio turned over the grenade to the
Intelligence and Special Action Division (ISAD) of the Explosive Ordinance Disposal Unit for examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession knowing it was inadmissible in
evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties included, among other things, the
examination of explosive devices, testified that on 22 March 1991, he received a request dated 19 March 1991
from Lt. Eduardo Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then affixed an orange
tag on the subject grenade detailing his name, the date and time he received the specimen. During the
preliminary examination of the grenade, he "[f]ound that [the] major components consisting of [a] high filler and
fuse assembly [were] all present," and concluded that the grenade was "[l]ive and capable of exploding." On
even date, he issued a certification stating his findings, a copy of which he forwarded to Diotoy on 11 August
1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on 22 July 1990 and resided at
the Muslim Center in Quiapo, Manila. At around 6:30 in the evening of 27 August 1990, he went to Plaza
Miranda to catch a breath of fresh air. Shortly after, several policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two other men, but found nothing in their possession. However, he
was arrested with two others, brought to and detained at Precinct No. 3, where he was accused of having shot a
police officer. The officer showed the gunshot wounds he allegedly sustained and shouted at petitioner "[i]to ang
tama mo sa akin." This officer then inserted the muzzle of his gun into petitioner's mouth and said, "[y]ou are the
one who shot me." Petitioner denied the charges and explained that he only recently arrived in Manila. However,
several other police officers mauled him, hitting him with benches and guns. Petitioner was once again searched,
but nothing was found on him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was akin to it a "stop and frisk," where a
"warrant and seizure can be effected without necessarily being preceded by an arrest" and "whose object is
either to maintain the status quo momentarily while the police officer seeks to obtain more
information." 15 Probable cause was not required as it was not certain that a crime had been committed,
however, the situation called for an investigation, hence to require probable cause would have been
"premature." 16 The RTC emphasized that Yu and his companions were "[c]onfronted with an emergency, in
which the delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and the officers "[h]ad to
act in haste," as petitioner and his companions were acting suspiciously, considering the time, place and
"reported cases of bombing." Further, petitioner's group suddenly ran away in different directions as they saw the
arresting officers approach, thus "[i]t is reasonable for an officer to conduct a limited search, the purpose of which
is not necessarily to discover evidence of a crime, but to allow the officer to pursue his investigation without fear
of violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was incidental to a lawful arrest, and
since petitioner "[l]ater voluntarily admitted such fact to the police investigator for the purpose of bombing the
Mercury Drug Store," concluded that sufficient evidence existed to establish petitioner's guilt beyond reasonable
doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994, the trial court thus found
petitioner guilty of the crime of illegal possession of explosives under Section 3 of P.D. No. 186, and sentenced
him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was appealing to this Court.
However, the record of the case was forwarded to the Court of Appeals which docketed it as CA-G.R. CR No.
15988 and issued a notice to file briefs. 21
In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted that:
1. THE LOWER COURT ERRED IN HOLDING THAT THE SEARCH UPON
THE PERSON OF ACCUSED-APPELLANT AND THE SEIZURE OF THE
ALLEGED HANDGRENADE FROM HIM "WAS AN APPROPRIATE
INCIDENT TO HIS ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE AGAINST
ACCUSED-APPELLANT THE HANDGRENADE ALLEGEDLY SEIZED
FROM HIM AS IT WAS A PRODUCT OF AN UNREASONABLE AND
ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of any of the conditions provided
for in Section 5 of Rule 113 of the Rules of Court, citing People vs. Mengote. 23 As such, the search was illegal,
and the hand grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the trial court and prayed that its
decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial court, noting, first, that petitioner
abandoned his original theory before the court a quo that the grenade was "planted" by the police officers; and
second, the factual finding of the trial court that the grenade was seized from petitioner's possession was not
raised as an issue. Further, respondent court focused on the admissibility in evidence of Exhibit "D," the hand
grenade seized from petitioner. Meeting the issue squarely, the Court of Appeals ruled that the arrest was lawful
on the ground that there was probable cause for the arrest as petitioner was "attempting to commit an offense,"
thus:
We are at a loss to understand how a man, who was in possession of a live grenade and in the
company of other suspicious character[s] with unlicensed firearm[s] lurking in Plaza Miranda at
a time when political tension ha[d] been enkindling a series of terroristic activities, [can] claim
that he was not attempting to commit an offense. We need not mention that Plaza Miranda is
historically notorious for being a favorite bomb site especially during times of political upheaval.
As the mere possession of an unlicensed grenade is by itself an offense, Malacat's posture is
simply too preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the testimony of the prosecution
witnesses that they received intelligence reports of a bomb threat at Plaza Miranda; the fact that PO Yu chased
petitioner two days prior to the latter's arrest, or on 27 August 1990; and that petitioner and his companions acted
suspiciously, the "accumulation" of which was more than sufficient to convince a reasonable man that an offense
was about to be committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty of gross negligence and
dereliction of duty, not to mention of gross incompetence, if they [would] first wait for Malacat
to hurl the grenade, and kill several innocent persons while maiming numerous others, before
arriving at what would then be an assured but moot conclusion that there was indeed probable
cause for an arrest. We are in agreement with the lower court in saying that the probable
cause in such a situation should not be the kind of proof necessary to convict, but rather the
practical considerations of everyday life on which a reasonable and prudent mind, and not
legal technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote, 26 which petitioner relied upon,
was inapplicable in light of "[c]rucial differences," to wit:
[In Mengote] the police officers never received any intelligence report that someone [at] the
corner of a busy street [would] be in possession of a prohibited article. Here the police officers
were responding to a [sic] public clamor to put a check on the series of terroristic bombings in
the Metropolis, and, after receiving intelligence reports about a bomb threat aimed at the
vicinity of the historically notorious Plaza Miranda, they conducted foot patrols for about seven
days to observe suspicious movements in the area. Furthermore, in Mengote, the police
officers [had] no personal knowledge that the person arrested has committed, is actually
committing, or is attempting to commit an offense. Here, PO3 Yu [had] personal knowledge of
the fact that he chased Malacat in Plaza Miranda two days before he finally succeeded in
apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING THE FINDING OF
THE TRIAL COURT THAT THE WARRANTIES ARREST OF PETITIONER
WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING THAT THE RULING
IN PEOPLE VS. MENGOTE DOES NOT FIND APPLICATION IN THE
INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the validity of the
warrantless arrest and search, then disagrees with the finding of the Court of Appeals that he was
"attempting to commit a crime," as the evidence for the prosecution merely disclosed that he was
"standing at the corner of Plaza Miranda and Quezon Boulevard" with his eyes "moving very fast" and
"looking at every person that come (sic) nearer (sic) to them." Finally, petitioner points out the factual
 similarities between his case and that of People v. Mengote to demonstrate that the Court of Appeals
miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the challenged decision..
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To repeat, the penalty imposed by the
trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
OF RECLUSION TEMPORAL, as minimum, and not more than THIRTY (30) YEARS
OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall unlawfully possess
grenades is reclusion temporal in its maximum period to reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion perpetua, the appeal therefrom
should have been to us, and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization
Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the Judiciary Act of 1948, 28 Section 5(2) of Article VIII
of the Constitution 29 and Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment" as used
in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's decision to this Court, yet the
trial court transmitted the record to the Court of Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered without jurisdiction, and
consider the appeal as having been directly brought to us, with the petition for review as petitioner's Brief for the
Appellant, the comment thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the prosecution failed to establish
petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was found in and seized from
petitioner's possession. Notably, Yu did not identify, in court, the grenade he allegedly seized. According to him,
he turned it over to his commander after putting an "X" mark at its bottom; however, the commander was not
presented to corroborate this claim. On the other hand, the grenade presented in court and identified by police
officer Ramilo referred to what the latter received from Lt. Eduardo Cabrera and police officer Diotoy not
immediately after petitioner's arrest, but nearly seven (7) months later, or on 19 March 1991; further, there was
no evidence whatsoever that what Ramilo received was the very same grenade seized from petitioner. In his
testimony, Yu never declared that the grenade passed on to Ramilo was the grenade the former confiscated
from petitioner. Yu did not, and was not made to, identify the grenade examined by Ramilo, and the latter did not
claim that the grenade he examined was that seized from petitioner. Plainly, the law enforcement authorities
failed to safeguard and preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he was with a group about to
detonate an explosive at Plaza Miranda, and Yu and his fellow officers chased, but failed to arrest them, then
considering that Yu and his three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner simply stood there in proximity to
the police officers. Note that Yu observed petitioner for thirty minutes and must have been close enough to
petitioner in order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during his custodial investigation by
police officer Serapio, such admission was inadmissible in evidence for it was taken in palpable violation of
Section 12(1) and (3) of Article III of the Constitution, which provide as follows:
Sec. 12 (1). Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Serapio conducted the custodial investigation on petitioner the day following his arrest. No lawyer was
present and Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer was then
available. Thus, even if petitioner consented to the investigation and waived his rights to remain silent
and to counsel, the waiver was invalid as it was not in writing, neither was it executed in the presence of
counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest and search of petitioner were
invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect
the same. 31 The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those
effected without a validly issued warrant, 32 subject to certain exceptions. As regards valid warrantless arrests,
these are found in Section 5, Rule 113 of the Rules of Court, which reads, in part:
Sec. 5. — Arrest, without warrant; when lawful — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed
it; and
(c) When the person to be arrested is a prisoner who has escaped . . .
 A warrantless arrest under the circumstances contemplated under Section 5(a) has been denominated
as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1) customs searches; (2) search of
moving vehicles; (3) seizure of evidence in plain view; (4) consent searches; 33 (5) a search incidental to a lawful
arrest; 34and (6) a "stop and frisk."35
In the instant petition, the trial court validated the warrantless search as a "stop and frisk" with "the seizure of the
grenade from the accused [as an appropriate incident to his arrest," hence necessitating a brief discussion on the
nature of these exceptions to the warrant requirement.
At the outset, we note that the trial court confused the concepts of a "stop-and-frisk" and of a search incidental to
a lawful arrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before
they may be validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the validity of the incidental search,
the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used
as a pretext for conducting a search. 36 In this instance, the law requires that there first be a lawful arrest before a
search can be made — the process cannot be reversed.37 At bottom, assuming a valid arrest, the arresting
officer may search the person of the arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in the commission of the crime, or
the fruit of the crime, or that which may be used as evidence, or which might furnish the arrestee with the means
of escaping or committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest preceding the search in light of the
lack of personal knowledge on the part of Yu, the arresting officer, or an overt physical act, on the part of
petitioner, indicating that a crime had just been committed, was being committed or was going to be committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the search conducted on petitioner
could not have been one incidental to a lawful arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of
outer clothing for weapons," as laid down in Terry, thus:
We merely hold today that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in the course
of investigating this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such persons in
an attempt to discover weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to conduct a "stop and
frisk," 40 it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him. 41 Finally, a "stop-and-
frisk" serves a two-fold interest: (1) the general interest of effective crime prevention and detection,
which underlies the recognition that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible criminal behavior even
without probable cause; and (2) the more pressing interest of safety and self-preservation which permit
the police officer to take steps to assure himself that the person with whom he deals is not armed with a
deadly weapon that could unexpectedly and fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the group which attempted to
bomb Plaza Miranda two days earlier. This claim is neither supported by any police report or record nor
corroborated by any other police officer who allegedly chased that group. Aside from impairing Yu's credibility as
a witness, this likewise diminishes the probability that a genuine reason existed so as to arrest and search
petitioner. If only to further tarnish the credibility of Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest (Exh. "A") expressly declares
otherwise, i.e., upon arrival of five (5) other police officers, petitioner and his companions were "immediately
collared."
Second, there was nothing in petitioner's behavior or conduct which could have reasonably elicited even mere
suspicion other than that his eyes were "moving very fast" — an observation which leaves us incredulous since
Yu and his teammates were nowhere near petitioner and it was already 6:30 p.m., thus presumably dusk.
Petitioner and his companions were merely standing at the corner and were not creating any commotion or
trouble, as Yu explicitly declared on cross-examination:
Q And what were they doing?
A They were merely standing.
Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or they did not
create any commotion.
A None, sir.
Q Neither did you see them create commotion?
A None, sir.42
Third, there was at all no ground, probable or otherwise, to believe that petitioner was armed with a deadly
weapon. None was visible to Yu, for as he admitted, the alleged grenade was "discovered" "inside the front
waistline" of petitioner, and from all indications as to the distance between Yu and petitioner, any telltale bulge,
assuming that petitioner was indeed hiding a grenade, could not have been visible to Yu. In fact, as noted by the
trial court:
 When the policemen approached the accused and his companions, they were not yet aware
that a handgrenade was tucked inside his waistline. They did not see any bulging object in [sic]
his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights solemnly guaranteed in Sections
2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court of Appeals in CA-G.R. CR No.
15988 is SET ASIDE for lack of jurisdiction on the part of said Court and, on ground of reasonable doubt, the
decision of 10 February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED and petitioner
SAMMY MALACAT y MANDAR is hereby ACQUITTED and ORDERED immediately released from detention,
unless his further detention is justified for any other lawful cause.
Costs de oficio.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Martinez,
JJ., concur.
Separate Opinions
PANGANIBAN, J., separate opinion:
I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:
1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid
stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and
2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.
I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili
vs. Court of Appeals,1 People vs. Encinada,2 People vs. Lacerna3 and People vs. Cuizon,4 all of which were
promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and,
particularly, to law enforcement officers. Let me first present a background on each.
Manalili Involved a
Valid Stop-and-Frisk
In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were
roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person
"high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands.
At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found
inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further
investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili
was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He
contended that the latter two were products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient
reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug
addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.
Lawmen Had Sufficient Opportunity
to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning,
appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly
because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf.
About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a
tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the
policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs
was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried
and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in
flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was
admissible in evidence.
Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence
of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and
raw intelligence information was not a sufficient ground for a warrantless arrest.5 Furthermore, "[t]he
prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the ship or
while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant
under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers
could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and
Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional
right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the particular
crime he allegedly committed and his exact whereabouts underscored the need to secure a
warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from
violating a constitutional right of the appellant. 7
. . . That the search disclosed a prohibited substance in appellant's possession and thus
confirmed the police officers' initial information and suspicion, did not cure its patent illegality.
An illegal search cannot be undertaken and then an arrest effected on the strength of the
evidence yielded by the search.8
Consent Validated an Otherwise
Illegal Search in Lacerna
In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched
when they passed through the checkpoint he was manning, making him suspect that something was amiss. He
signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside
a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana.
Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional
rights.
The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and
seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he
freely consented to the search. Although appellant and his companion were stopped by the police on mere
suspicion — without probable cause — that they were engaged in a felonious enterprise, the Court stressed that
their permission for the search was expressly sought and obtained by the law enforcers. This consent validated
the search, waiver being a generally recognized exception to the rule against warrantless
search.9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of."
Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon
Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a
tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity
of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon,
the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee
who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at
the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which
proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel
room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua
and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at
the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed
to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team
proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three
were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the
validity of his warrantless arrest, search and seizure.
Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than
chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of
such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well
as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in
flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife
and child. No offense had just been committed or was actually being committed or attempted by him in the
presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an
offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search,
"even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose
and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11
The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the
warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to
challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the
case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was
effectively denied his right to counsel; for although he was provided with one, he could not understand and
communicate with him concerning his defense.
After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that
there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug
transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce
identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and
searches, as where motor vehicles are used and there is great probability that the suspect would get away
before a warrant can be procured. Most important is that the law enforcers must act immediately on the
information received, suspicions raised or probable cause established, and should effect the arrests and
searches without any delay. 12
Instant Case Correlated
with Four Cited
Now to the correlation with the case at bar.
(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the
offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug
use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were
ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be
presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug
user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly
manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users,
there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different
circumstances, such as where the policemen are not specially trained, and in common places where people
ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or
search on him.
The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving
very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be
hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.
(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions
of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious
activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of
any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious.
Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be
justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises
and reach his house unhampered by the police. There was considerable interruption between the supposed
commission of the crime and his subsequent arrest in his house where he was already resting.
Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants
themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada,
there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified
intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important
to bring one's evidence before a judge who shall independently determine if probable cause exists for the
issuance of the warrant. It is not for the police to make such determination.
As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his
arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier
attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his
valid arrest there and then and, further, their inability to effectively investigate and identify the culprit — so as to
have obtained a lawful arrest warrant — that hindered his valid seizure thereafter.
(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the
police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police
to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly
effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and
express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of
Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify
a search on his person.
Mengote Supports
Present Ponencia
Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right
against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an
informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western
Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side"
with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried
to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote
was a fully loaded pistol; from his companion, a fan knife.
The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court,
through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a
person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and he was holding his abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless not been
shown what their suspicion was all about. In fact, the policemen themselves testified that they
were dispatched to that place only because of the telephone call from the informer that there
were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North
Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did
he elaborate on the impending crime. 14
In closing, the Court lamented and thus warned:
It would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a
peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it. This simply cannot be
done in a free society. This is not a police state where order is exalted over liberty or, worse,
personal malice on the part of the arresting officer may be justified in the name of security. 15
Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way
justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to
practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.
WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.
Separate Opinions
PANGANIBAN, J., separate opinion:
I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide Jr. that:
1. the search conducted on petitioner (a) was not incidental to a lawful arrest and (b) did not constitute a valid
stop-and-frisk; thus, the grenade found in his person cannot be admitted as evidence against him; and
2. the Court of Appeals had no jurisdiction to entertain the appeal from the trial court's decision.
I wish, however, to correlate the present case with four relevant decisions I authored for the Court: Manalili
vs. Court of Appeals,1 People vs. Encinada,2 People vs. Lacerna3 and People vs. Cuizon,4 all of which were
promulgated without any dissenting view. This correlation may be of benefit to the bench, the bar and,
particularly, to law enforcement officers. Let me first present a background on each.
Manalili Involved a
Valid Stop-and-Frisk
In Manalili, anti-narcotics policemen conducted a surveillance in response to information that drug addicts were
roaming the area fronting the city cemetery of Kalookan, and chanced upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance was characteristic of a person
"high on drugs," the lawmen approached him, introduced themselves and inquired as to what was in his hands.
At first, Manalili resisted but the police prevailed and he showed them his wallet. The anti-narcotics men found
inside what they suspected to be crushed marijuana residue. They took Manalili to their station for further
investigation. A chromatographic test of the wallet contents positively affirmed the lawmen's suspicions. Manalili
was thus charged, tried and convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission of the marijuana as evidence. He
contended that the latter two were products of the illegal search.
Rejecting his appeal, this Court held that the search was akin to a stop-and-frisk. The police had sufficient
reason to stop Manalili, who "had red eyes and was wobbling like a drunk . . . [in] a popular hangout of drug
addicts," in order to investigate if he was actually "high" on drugs. The situation verily called for a stop-and-frisk.
Lawmen Had Sufficient Opportunity
to Secure Warrant in Encinada
In Encinada, a police officer received late in the afternoon a tip from an informant that the following morning,
appellant would be arriving at the Surigao port bringing marijuana. Without securing a search warrant allegedly
because courts were already closed for the day, the lawmen proceeded early next morning to the city wharf.
About 8:30 a.m., they saw the suspect, carrying two plastic baby chairs, disembark and thereafter board a
tricycle. The police followed immediately and ordered the driver to stop. After introducing themselves, the
policemen asked Encinada to alight and to hand over his luggage for inspection. Found between the baby chairs
was a bulky package which was later found to contain marijuana. On these particulars, he was charged, tried
and convicted by the trial court for violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in
flagrante delicto. Hence, the warrantless search following his arrest was valid, and the marijuana seized was
admissible in evidence.
Reversing the trial court, this Court stressed the following: Encinada was not committing a crime in the presence
of the police; the latter did not have personal knowledge of facts indicating that he just committed an offense; and
raw intelligence information was not a sufficient ground for a warrantless arrest.5 Furthermore, "[t]he
prosecution's evidence did nor show any suspicious behavior when the appellant disembarked from the ship or
while he rode the motorela. No act or fact demonstrating a felonious enterprise could be ascribed to appellant
under such bare circumstances." 6 Having known the identity of their suspect the previous day, the law enforcers
could have secured a warrant of arrest even within such limited period (per Administrative Circular No. 13 and
Circular No. 19, s. 1987). In emphasizing the importance of according respect to every person's constitutional
right against illegal arrests and searches, the Court exhorted:
Lawmen cannot be allowed to violate every law they are expected to enforce. [The
policeman's] receipt of the intelligence information regarding the culprit's identity, the particular
crime he allegedly committed and his exact whereabouts underscored the need to secure a
warrant for his arrest. But he failed to do so. Such failure or neglect cannot excuse him from
violating a constitutional right of the appellant.7
. . . That the search disclosed a prohibited substance in appellant's possession and thus
confirmed the police officers' initial information and suspicion, did not cure its patent illegality.
An illegal search cannot be undertaken and then an arrest effected on the strength of the
evidence yielded by the search.8
Consent Validated an Otherwise
Illegal Search in Lacerna
In Lacerna meanwhile, a police officer observed that the occupants of a taxicab bowed their heads and slouched
when they passed through the checkpoint he was manning, making him suspect that something was amiss. He
signaled the driver to stop, then asked permission to search the vehicle. The occupants consented. Found inside
a plastic bag were several blocks wrapped in newspaper, which were later discovered to contain marijuana.
Lacerna questioned his warrantless arrest and seizure, claiming that they were violative of his constitutional
rights.
The Court, despite declaring that the prior attendant circumstances did not justify a warrantless search and
seizure, ruled that the search was valid, not because Lacerna was caught in flagrante delicto, but because he
freely consented to the search. Although appellant and his companion were stopped by the police on mere
suspicion — without probable cause — that they were engaged in a felonious enterprise, the Court stressed that
their permission for the search was expressly sought and obtained by the law enforcers. This consent validated
the search, waiver being a generally recognized exception to the rule against warrantless
search.9 The marijuana, therefore, was admissible in evidence. "There was no poisonous tree to speak of."
Mere Suspicion of Criminal Activity
Did Not Justify Search of Cuizon
Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for about a month, received in the morning a
tip from an informant that Cuizon and his wife were arriving at NAIA that same day, bringing a large quantity
of shabu. A team was immediately organized and sent to the airport to intercept the suspect. Shortly after noon,
the Cuizon spouses arrived. While at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee
who thereafter bearded a taxicab, while the Cuizons took a different vehicle. The NBI team members posted at
the NAIA parking area, however, failed to intercept the suspects. The team merely trailed the taxicab which
proceeded to the Manila Peninsula Hotel in Makati. After identifying themselves to the suspects in their hotel
room, the team asked permission to search their bags in the presence of the hotel's chief security officer. Pua
and Lee consented in writing. Found inside three of the four bags similar to those handed to them by Cuizon at
the airport were plastic packages of white crystalline substances which, upon later examination, were confirmed
to be shabu. Taking with them the two accused (who, however, did not implicate Cuizon), the NBI team
proceeded to the Cuizon residence where they found a bag allegedly containing the same substance. The three
were charged and convicted of illegal transport of the regulated drug. On appeal, only Cuizon challenged the
validity of his warrantless arrest, search and seizure.
Reiterating the doctrine that "where a person is searched without a warrant, and under circumstances other than
chose justifying a warrantless arrest . . . , upon a mere suspicion that he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed a crime has been committed by him, then the search made of
such person as well as his arrest [is] deemed illegal," 10 this Court declared unlawful the arrest of Cuizon as well
as the incidental search and seizure. The warrantless arrest and search were not justified by the rules on "in
flagrante delicto" or "hot pursuit" for, at the time of his arrest, Cuizon was inside his home resting with his wife
and child. No offense had just been committed or was actually being committed or attempted by him in the
presence of the lawmen, nor did the latter have personal knowledge of facts indicating that Cuizon authored an
offense that had just in fact been committed. Consequently, any evidence obtained during the illegal search,
"even if tending to confirm or actually confirming the initial suspicion, is absolutely inadmissible for any purpose
and in any proceeding, the same being 'the fruit of the poisonous tree.'" 11
The same would have been true as regards Pua and Lee. But Pua effectively waived his right against the
warrantless search when he agreed in writing for the NBI team to search his luggage. Besides, he failed to
challenge the validity of his arrest and search and the admission of the evidence obtained thereby. However, the
case against Lee, who could not speak English or Filipino, was remanded for a retrial, because he was
effectively denied his right to counsel; for although he was provided with one, he could not understand and
communicate with him concerning his defense.
After reviewing previous decisions on valid warrantless arrests and searches, the Court underscored in sum that
there was need for facts providing probable cause, such as the "distinct odor of marijuana, reports about drug
transporting or positive identification by informers, suspicious behavior, attempt to flee, [or] failure to produce
identification papers" to justify warrantless arrests and searches. Likewise, urgency must attend such arrests and
searches, as where motor vehicles are used and there is great probability that the suspect would get away
before a warrant can be procured. Most important is that the law enforcers must act immediately on the
information received, suspicions raised or probable cause established, and should effect the arrests and
searches without any delay. 12
Instant Case Correlated
with Four Cited
Now to the correlation with the case at bar.
(1) As in Manalili, lawmen were on surveillance in response to information that a criminal activity could be in the
offing at a specified place. The stark difference, however, is that in Manalili, the reported activity involved drug
use and the lawmen belonged to the anti-narcotics group, while in the instant case, the police on patrol were
ordinary law enforcers on the lookout for possible bombers. In the former, the law enforcers concerned may be
presumed to possess special knowledge and skill to detect the physical features exhibited by a current drug
user. Thus, when these specially trained enforcers saw Manalili with reddish eyes and walking in a wobbly
manner characteristic of a person "high" on drugs per their experience, and in a known hangout of drug users,
there was sufficient genuine reason to stop and frisk the suspect. It is well to emphasize that under different
circumstances, such as where the policemen are not specially trained, and in common places where people
ordinarily converge, the same features displayed by a person will not normally justify a warrantless arrest or
search on him.
The case before us presents such a situation. The policemen merely observed that Malacat's eyes were moving
very fast. They did not notice any bulges or packets about the bodies of these men indicating that they might be
hiding explosive paraphernalia. From their outward look, nothing suggested that they were at the time armed and
dangerous. Hence, there was no justification for a stop-and-frisk.
(2) In relation to the cases of Encinada and Cuizon, at the time of the arrests of the suspects, none of the actions
of Accused Encinada and Cuizon were beyond normal as to suggest that they were then engaged in felonious
activities. The simple handing over of the baggage by Cuizon to Pua and Lee was far from being indicative of
any illegal activity. Such act by itself does not, by any stretch of imagination, even appear to be suspicious.
Granting that indeed an offense was committed by Cuizon at the airport, his subsequent arrest cannot even be
justified under the rule on "hot pursuit." He did not attempt to flee, but was actually able to leave the premises
and reach his house unhampered by the police. There was considerable interruption between the supposed
commission of the crime and his subsequent arrest in his house where he was already resting.
Moreover, Encinada and Cuizon had been previously identified and subjected to surveillance. Police informants
themselves, presumably reliable, tipped off their alleged criminal activity. Specifically with respect to Encinada,
there was sufficient time to priorly obtain a warrant for his arrest. It must be stressed that raw unverified
intelligence information alone is not sufficient to justify a warrantless arrest or search. That is why it is important
to bring one's evidence before a judge who shall independently determine if probable cause exists for the
issuance of the warrant. It is not for the police to make such determination.
As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched to intercept him which foiled his
arrest and search. In the present case, if it were true that the arresting officer saw Malacat two days earlier
attempting to detonate a grenade in the same vicinity, again it was the policemen's ineptitude that frustrated his
valid arrest there and then and, further, their inability to effectively investigate and identify the culprit — so as to
have obtained a lawful arrest warrant — that hindered his valid seizure thereafter.
with one" holding his abdomen." The police approached them and identified themselves, whereupon the two tried
to flee but failed as other lawmen surrounded them. The suspects were searched, and recovered from Mengote
was a fully loaded pistol; from his companion, a fan knife.
The Court ruled that the situation was not one calling for a lawful warrantless search and arrest. As the Court,
through Mr. Justice Isagani A. Cruz, succinctly put it: "What offense could possibly have been suggested by a
person 'looking from side to side' and 'holding his abdomen' and in a place not exactly forsaken?"
. . . [T]here could have been a number of reasons, all of them innocent, why his eyes were
darting from side to side and he was holding his abdomen. If they excited suspicion in the
minds of the arresting officers, as the prosecution suggests, it has nevertheless not been
shown what their suspicion was all about. In fact, the policemen themselves testified that they
were dispatched to that place only because of the telephone call from the informer that there
were 'suspicious-looking' persons in that vicinity who were about to commit a robbery at North
Bay Boulevard. The caller did not explain why he thought the men looked suspicious nor did
he elaborate on the impending crime. 14
In closing, the Court lamented and thus warned:
It would be a sad day, indeed, if any person could be summarily arrested and searched just
because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a
peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may
have committed a criminal act or is actually committing or attempting it. This simply cannot be
done in a free society. This is not a police state where order is exalted over liberty or, worse,
personal malice on the part of the arresting officer may be justified in the name of security.15
Under our rule in Mengote, petitioner's dubious act of moving his eyes swiftly from side to side can in no way
justify a stop-and-frisk. To convict a person on the basis only of his queer behavior and to sentence him to
practically a lifetime in prison would simply be unfathomable. Nothing can be more wrong, unjust and inhuman.
WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT Petitioner Sammy Malacat y Mandar.

(3) In Lacerna, true, the occupants of the taxicab bowed their heads and slouched when they passed through the
police checkpoint. Although such acts could raise suspicions, they did not provide sufficient reason for the police
to stop and investigate them for possible criminal operation; much less, to conduct an extensive search of their
belongings. A checkpoint search is limited to a roving view within the vehicle. A further search may be validly
effected only if something probably illegal is within his "plain view." In Lacerna, if not for the passengers' free and
express consent, the search would have been undoubtedly declared illegal. Similarly, the fast-moving eyes of
Malacat, although connoting unusual behavior, was not indicative that he was armed and dangerous as to justify
a search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs. Mengote, 13 another classic on the right
against unreasonable searches and seizures. Upon receiving a telephone call shortly before noon from an
informer that there were suspicious-looking persons at a certain street corner in Tondo, Manila, the Western
Police District dispatched a surveillance team to said place. There they saw two men "looking from side to side"

G.R. No. 81510 March 14, 1990
HORTENCIA SALAZAR, petitioner,
vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment
Administration, and FERDIE MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under
Article 38 of the Labor Code, prohibiting illegal recruitment.
The facts are as follows:
xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn
statement filed with the Philippine Overseas Employment Administration (POEA for brevity)
charged petitioner Hortencia Salazar, viz:
04. T: Ano ba ang dahilan at ikaw ngayon ay narito at
nagbibigay ng salaysay.
S: Upang ireklamo sa dahilan ang aking PECC Card ay
ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap and ginawang panloloko
sa
iyo ng tao/mga taong inireklamo mo?
S. Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha
ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint
was assigned, sent to the petitioner the following telegram:
YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ
POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA
COR. ORTIGAS AVE. MANDALUYONG MM ON NOVEMBER 6, 1987 AT
10 AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF
LAW.
4. On the same day, having ascertained that the petitioner had no license to operate a
recruitment agency, public respondent Administrator Tomas D. Achacoso issued his
challenged CLOSURE AND SEIZURE ORDER NO. 1205 which reads:
HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order
No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of committing illegal
recruitment, it having verified that you have —
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the New
Labor Code in relation to Article 38 of the same code.
This ORDER is without prejudice to your criminal prosecution under existing
laws.
Done in the City of Manila, this 3th day of November, 1987.
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu
issued an office order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty.
Ernesto Vistro as members of a team tasked to implement Closure and Seizure Order No.
1205. Doing so, the group assisted by Mandaluyong policemen and mediamen Lito Castillo of
the People's Journal and Ernie Baluyot of News Today proceeded to the residence of the
petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that
petitioner was operating Hannalie Dance Studio. Before entering the place, the team served
said Closure and Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them
entry into the premises. Mrs. Flora Salazar informed the team that Hannalie Dance Studio was
accredited with Moreman Development (Phil.). However, when required to show credentials,
she was unable to produce any. Inside the studio, the team chanced upon twelve talent
 performers — practicing a dance number and saw about twenty more waiting outside, The
team confiscated assorted costumes which were duly receipted for by Mrs. Asuncion
Maguelan and witnessed by Mrs. Flora Salazar.
6. On January 28, 1988, petitioner filed with POEA the following letter:
Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we
respectfully request that the personal properties seized at her residence last January 26, 1988
be immediately returned on the ground that said seizure was contrary to law and against the
will of the owner thereof. Among our reasons are the following:
1. Our client has not been given any prior notice or hearing, hence the
Closure and Seizure Order No. 1205 dated November 3, 1987 violates "due
process of law" guaranteed under Sec. 1, Art. III, of the Philippine
Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which
guarantees right of the people "to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose."
3. The premises invaded by your Mr. Ferdi Marquez and five (5) others
(including 2 policemen) are the private residence of the Salazar family, and
the entry, search as well as the seizure of the personal properties belonging
to our client were without her consent and were done with unreasonable
force and intimidation, together with grave abuse of the color of authority,
and constitute robbery and violation of domicile under Arts. 293 and 128 of
the Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND PESOS
(P10,000.00) in all (and which were already due for shipment to Japan) are
returned within twenty-four (24) hours from your receipt hereof, we shall feel
free to take all legal action, civil and criminal, to protect our client's interests.
We trust that you will give due attention to these important matters.
7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant
petition; on even date, POEA filed a criminal complaint against her with the Pasig Provincial
Fiscal, docketed as IS-88-836.1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are
alreadyfait accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of
the grave public interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the
Secretary of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It
is also an issue squarely raised by the petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may
not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been described is the state of the
law as it was in September, 1985. The law has since been altered. No longer does the mayor
have at this time the power to conduct preliminary investigations, much less issue orders of
arrest. Section 143 of the Local Government Code, conferring this power on the mayor has
been abrogated, rendered functus officio by the 1987 Constitution which took effect on
February 2, 1987, the date of its ratification by the Filipino people. Section 2, Article III of the
1987 Constitution pertinently provides that "no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the person or things to be seized." The constitutional
proscription has thereby been manifested that thenceforth, the function of determining
probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may
be validly exercised only by judges, this being evidenced by the elimination in the present
Constitution of the phrase, "such other responsible officer as may be authorized by law" found
in the counterpart provision of said 1973 Constitution, who, aside from judges, might conduct
preliminary investigations and issue warrants of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:
We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to
exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and
detached "judge" to determine the existence of probable cause for purposes of arrest or
search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case.
Although his office "is to see that justice is done and not necessarily to secure the conviction of
the person accused," he stands, invariably, as the accused's adversary and his accuser. To
permit him to issue search warrants and indeed, warrants of arrest, is to make him both judge
and jury in his own right, when he is neither. That makes, to our mind and to that extent,
Presidential Decree No. 1936 as amended by Presidential Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential
Decrees Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the
exercise of his legislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then
Minister of Labor merely exercised recommendatory powers:
 (c) The Minister of Labor or his duly authorized representative shall have the power to
recommend the arrest and detention of any person engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving
more teeth to the campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure
powers:
(b) The Minister of Labor and Employment shall have the power to cause the arrest and
detention of such non-licensee or non-holder of authority if after proper investigation it is
determined that his activities constitute a danger to national security and public order or will
lead to further exploitation of job-seekers. The Minister shall order the closure of companies,
establishment and entities found to be engaged in the recruitment of workers for overseas
employment, without having been licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister
search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized representatives shall have
the power to cause the arrest and detention of such non-licensee or non-holder of authority if
after investigation it is determined that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The Minister shall order the
search of the office or premises and seizure of documents, paraphernalia, properties and other
implements used in illegal recruitment activities and the closure of companies, establishment
and entities found to be engaged in the recruitment of workers for overseas employment,
without having been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants.
Hence, the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c),
of the Labor Code, unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a deportation
case, governed by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration
Law. We have ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his
duly authorized representatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however,
because of the recognized supremacy of the Executive in matters involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228
U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief
Executive "when he deems such action necessary for the peace and domestic tranquility of the
nation." Justice Johnson's opinion is that when the Chief Executive finds that there are aliens
whose continued presence in the country is injurious to the public interest, "he may, even in
the absence of express law, deport them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil.
534, 568, 569; In re McCulloch Dick, 38 Phil. 41).
The right of a country to expel or deport aliens because their continued presence is detrimental
to public welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of
Immigration and the Director of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to
order arrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole
domain of the courts.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is
clearly in the nature of a general warrant:
Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order
No. 1022, I hereby order the CLOSURE of your recruitment agency being operated at No. 615
R.O. Santos St., Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of committing illegal
recruitment, it having verified that you have —
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas employment;
(2) Committed/are committing acts prohibited under Article 34 of the New
Labor Code in relation to Article 38 of the same code.
13
This ORDER is without prejudice to your criminal prosecution under existing laws.
We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration constitutionally
objectionable is that they are in the nature of general warrants. The search warrants describe
the articles sought to be seized in this wise:
1) All printing equipment, paraphernalia, paper, ink, photo equipment,
typewriters, cabinets, tables, communications/ recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM" newspaper and any and all documents/communications,
letters and facsimile of prints related to the "WE FORUM" newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other publications
to promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines, Light-a-Fire Movement and April 6
Movement; and
 3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN, pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking
"Bagong Silang."
In Stanford v. State of Texas, the search warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments concerning the Communist Parties of Texas, and the operations of the Community
Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like
manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or
otherwise" have been held too general, and that portion of a search warrant which authorized
the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes (the statute dealing with the crime of conspiracy)" was held to be
a general warrant, and therefore invalid. The description of the articles sought to be seized
under the search warrants in question cannot be characterized differently.
In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history;
the era of disaccord between the Tudor Government and the English Press, when "Officers of
the Crown were given roving commissions to search where they pleased in order to suppress
and destroy the literature of dissent both Catholic and Puritan." Reference herein to such
historical episode would not be relevant for it is not the policy of our government to suppress
any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear
and imminent danger to state security. 14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may
issue warrants of arrest and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom the
President or the Commissioner of Immigration may order arrested, following a final order of
deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared
UNCONSTITUTIONAL and null and void. The respondents are ORDERED to return all materials seized as a
result of the implementation of Search and Seizure Order No. 1205.
No costs.
G.R. No. 113447 October 9, 1997
ALAIN MANALILI y DIZON, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there
is no time to secure an arrest or a search warrant, policemen should employ limited, flexible responses — like
"stop-and-frisk" — which are graduated in relation to the amount of information they possess, the lawmen being
ever vigilant to respect and not to violate or to treat cavalierly the citizen's constitutional rights against
unreasonable arrest, search and seizure.
The Case
This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of Court,
seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its Resolution dated
January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the Philippines vs. Alain Manalili y Dizon."
In an Information dated April 11, 1988,1 Petitioner Alain Manalili y Dizon was charged by Assistant Caloocan City
Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No. 6425, allegedly committed as
follows:2
That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused without any authority of law, did then and there
wilfully, unlawfully and feloniously have in his custody, possession and control crushed marijuana
residue, which is a prohibited drug and knowing the same to be such.
Contrary to Law.
Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge. 3 With the agreement of the
public prosecutor, appellant was released after filing a P10,000.00 bail bond. 4 After trial in due course, the
Regional Trial Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19,
1989 a decision5convicting appellant of illegal possession of marijuana residue. The dispositive portion of the
decision reads:6
WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y DIZON
guilty beyond reasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as
amended (Illegal Possession of Marijuana residue), and hereby sentences (sic) said accused to suffer
imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to pay the
costs.
xxx xxx xxx
Appellant remained on provisional liberty. 7 Atty. Benjamin Razon, counsel for the defense, filed a Notice of
Appeal8dated May 31, 1989. On April 19, 1993, Respondent Court9 promulgated its assailed Decision, denying
the appeal and affirming the trial court:10
ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects.
Costs against appellant.
Respondent Court11 denied reconsideration via its assailed Resolution dated January 20, 1994, disposing:
ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED.
The Facts
Version of the Prosecution
The facts, as found by the trial court, are as follows: 12
At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics Unit of the
Kalookan City Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in
front of the Kalookan City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger Lumabas
and a driver named Arnold Enriquez was driving a Tamaraw vehicle which was the official car of the
Police Station of Kalookan City. The surveillance was being made because of information that drug
addicts were roaming the area in front of the Kalookan City Cemetery.
Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then
chanced upon a male person in front of the cemetery who appeared high on drugs. The male person
was observed to have reddish eyes and to be walking in a swaying manner. When this male person
tried to avoid the policemen, the latter approached him and introduced themselves as police officers.
The policemen then asked the male person what he was holding in his hands. The male person tried to
resist. Pat Romeo Espiritu asked the male person if he could see what said male person had in his
hands. The latter showed the wallet and allowed Pat. Romeo Espiritu to examine the same. Pat.
Espiritu took the wallet and examined it. He found suspected crushed marijuana residue inside. He kept
the wallet and its marijuana contents.
The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police Headquarters
and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl.
Tamondong the confiscated wallet and its suspected marijuana contents. The man turned out to be the
accused ALAIN MANALILI y DIZON.
Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong
wrapped the same with a white sheet of paper on which he wrote "Evidence "A" 4/11/88 Alain Manalili".
The white sheet of paper was marked as Exhibit "E-3". The residue was originally wrapped in a smaller
sheet of folded paper. (Exhibit "E-4").
Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry Section
requesting a chemical analysis of the subject marijuana residue (Exhibit "D"). Cpl. Tamondong
thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit "A"). Pat. Angel Lumabas
handcarried the referral slip (Exhibit "D") to the National Bureau of Investigation (NBI), including the
subject marijuana residue for chemical analysis. The signature of Pat. Lumabas appears on the left
bottom corner of Exhibit "D".
The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the subject
marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on the stamped portion of
Exhibit "D".
It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the specimen
which she identified. (Exhibit
"E")13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in her Certification
dated April 11, 1988 (Exhibit "F").14 These crushed marijuana leaves gave positive results for marijuana,
according to the Certificate.
Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she
also found that the "crushed marijuana leaves" gave positive results for marijuana. She then prepared a
Final Report of her examinations (Exhibit "G").
After conducting the examinations, Ms. Pascual placed the specimen in a white letter-envelope and
sealed it. (Exhibit "E"). She then wrote identification notes on this letter-envelope. (Exhibit "E-1").
Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic Chemistry Section
to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the
City Fiscal of Kalookan City. (Exhibit "C")
On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery
when he was apprehended.15
Version of the Defense
The trial court summarized the testimonies of the defense witnesses as follows: 16
At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was aboard a
tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his boarding house. Three
policemen ordered the driver of the tricycle to stop because the tricycle driver and his lone passenger
were under the influence of marijuana. The policemen brought the accused and the tricycle driver inside
the Ford Fiera which the policemen were riding in. The policemen then bodily searched the accused
and the tricycle driver. At this point, the accused asked the policemen why he was being searched and
the policemen replied that he (accused) was carrying marijuana. However, nothing was found on the
persons of the accused and the driver. The policemen allowed the tricycle driver to go while they
brought the accused to the police headquarters at Kalookan City where they said they would again
search the accused.
On the way to the police headquarters, the accused saw a neighbor and signalled the latter to follow
him. The neighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival
thereat, the accused was asked to remove his pants in the presence of said neighbor and another
companion. The policemen turned over the pants of the accused over a piece of bond paper trying to
look for marijuana. However, nothing was found, except for some dirt and dust. This prompted the
companion of the neighbor of the accused to tell the policemen to release the accused. The accused
 was led to a cell. The policemen later told the accused that they found marijuana inside the pockets of
his pants.
At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the cell and
was led to the Ford Fiera. The accused was told by the policemen to call his parents in order to "settle"
the case. The policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and
Cpl. Tamondong. Pat. Lumabas was the policeman who told the accused to call his parents. The
accused did not call his parents and he told the policemen that his parents did not have any telephone.
At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office of an
inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his person but the
Fiscal told the accused not to say anything. The accused was then brought back to the Kalookan City
Jail.
Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the accused were
stopped by policemen and then bodily searched on April 11, 1988, testified. He said that the policemen
found nothing either on his person or on the person of the accused when both were searched on April
11, 1988.
Roberto Abes, a neighbor of the accused, testified that he followed the accused at the Kalookan City
Police Headquarters on April 11, 1988. He said that the police searched the accused who was made to
take off his pants at the police headquarters but no marijuana was found on the body of the accused.
Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing that
tricycles were allowed to ply in front of the Caloocan Cemetery.17
The Rulings of the Trail and the Appellate Courts
The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the
arresting officers' testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses,
testifying only on what transpired during the performance of their duties. Substantially they asserted that the
appellant was found to be in possession of a substance which was later identified as crushed marijuana residue.
The trial court disbelieved appellant's defense that this charge was merely "trumped up," because the appellant
neither took any legal action against the allegedly erring policemen nor moved for a reinvestigation before the
city fiscal of Kalookan City.
On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations,
surmises or conjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the
appellate court ruled that the said inconsistencies were insubstantial to impair the essential veracity of the
narration. It further found petitioner's contention — that he could not be convicted of illegal possession of
marijuana residue — to be without merit, because the forensic chemist reported that what she examined were
marijuana leaves.
Issues
Petitioner assigns the following errors on the part of Respondent Court:
I
The Court of Appeals erred in upholding the findings of fact of the trial court.
II
The Court of Appeals erred in upholding the conviction of (the) accused (and) in ruling
that the guilt of the accused had been proved (beyond) reasonable doubt.
III
The Court of Appeals erred in not ruling that the inconsistencies in the testimonies of
the prosecution witnesses were material and substantial and not minor.
IV
The Court of Appeals erred in not appreciating the evidence that the accused was
framed for the purpose of extorting money.
V
The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.
VI
The Court of Appeals erred in admitting the evidence of the prosecution which are
inadmissible in evidence.
Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility
of prosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and
(3) the sufficiency of the prosecution evidence to sustain his conviction.
The Court's Ruling
The petition has no merit.
First Issue: Admissibility of the Evidence Seized
During a Stop-and-Frisk
Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were
products of an illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as
memorandum for respondent, counters that the inadmissibility of the marijuana leaves was waived because
petitioner never raised this issue in the proceedings below nor did he object to their admissibility in evidence. He
adds that, even assuming arguendo that there was no waiver, the search was legal because it was incidental to
a warrantless arrest under Section 5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark
case of Terry vs. Ohio,18 a stop-and-frisk was defined as the vernacular designation of the right of a police officer
to stop a citizen on the street, interrogate him, and pat him for weapon(s):
. . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in the course of investigating this behavior he identified
himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of the outer clothing of
such persons in an attempt to discover weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced
in evidence against the person from whom they were taken. 19
In allowing such a search, the United States Supreme Court held that the interest of effective crime prevention
and detection allows a police officer to approach a person, in appropriate circumstances and manner, for
purposes of investigating possible criminal behavior even though there is insufficient probable cause to make an
actual arrest. This was the legitimate investigative function which Officer McFadden discharged in that case,
when he approached petitioner and his companion whom he observed to have hovered alternately about a street
corner for an extended period of time, while not waiting for anyone; paused to stare in the same store window
roughly 24 times; and conferred with a third person. It would have been sloppy police work for an officer of 30
years' experience to have failed to investigate this behavior further.
In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that what justified
the limited search was the more immediate interest of the police officer in taking steps to assure himself that the
person with whom he was dealing was not armed with a weapon that could unexpectedly and fatally be used
against him.
It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval
of searches and seizures through the warrant procedure, excused only by exigent circumstances.
In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously
secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to
challenge.20 Section 2, Article III of the 1987 Constitution, gives this guarantee:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a "fruit of the
poisonous tree," falling under the exclusionary rule:
Sec. 3. . . .
(2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for any purpose
in any proceeding.
This right, however, is not absolute.21 The recent case of People vs. Lacerna enumerated five recognized
exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental to a lawful arrest, (2)
search of moving vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused
themselves of their right against unreasonable search and seizure." 22 In People vs. Encinada,23 the Court further
explained that "[i]n these cases, the search and seizure may be made only with probable cause as the essential
requirement. Although the term eludes exact definition, probable cause for a search is, at best, defined as a
reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the person accused is guilty of the offense with which he is charged; or the
existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s) sought in connection with said
offense or subject to seizure and destruction by law is in the place to be searched."
Stop-and-frisk has already been adopted as another exception to the general rule against a search without a
warrant. In Posadas vs. Court of Appeals,24 the Court held that there were many instances where a search and
seizure could be effected without necessarily being preceded by an arrest, one of which was stop-and-frisk. In
said case, members of the Integrated National Police of Davao stopped petitioner, who was carrying a buri bag
and acting suspiciously. They found inside petitioner's bag one .38-cal. revolver with two rounds of live
ammunition, two live ammunitions for a .22-cal. gun and a tear gas grenade. In upholding the legality of the
search, the Court said that to require the police officers to search the bag only after they had obtained a search
warrant might prove to be useless, futile and much too late under the circumstances. In such a situation, it was
reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity or to
maintain the status quo while obtaining more information, rather than to simply shrug his shoulders and allow a
crime to occur.
In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had
red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which according to police information
was a popular hangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the
Caloocan City Police, such suspicious behavior was characteristic of drug addicts who were "high." The
policemen therefore had sufficient reason to stop petitioner to investigate if he was actually high on drugs. During
such investigation, they found marijuana in petitioner's possession:25
FISCAL RALAR:
Q And why were you conducting surveillance in front of the Caloocan Cemetery,
Sangandaan, Caloocan City?
A Because there were some informations that some drug dependents were roaming
around at A. Mabini Street in front of the Caloocan Cemetery, Caloocan City.
xxx xxx xxx
Q While you were conducting your surveillance, together with Pat. Angel Lumabas
and one Arnold Enriquez, what happened, if any?
A We chanced upon one male person there in front of the Caloocan Cemetery then
when we called his attention, he tried to avoid us, then prompting us to approach him
and introduce ourselves as police officers in a polite manner.
xxx xxx xxx
Q Could you describe to us the appearance of that person when you chanced upon
him?
A That person seems like he is high on drug.
Q How were you able to say Mr. Witness that that person that you chanced upon was
high on drug?
A Because his eyes were red and he was walking on a swaying manner.
Q What was he doing in particular when you chanced upon him?
A He was roaming around, sir.
Q You said that he avoided you, what did you do when he avoided you?
A We approached him and introduced ourselves as police officers in a polite manner,
sir.
Q How did you introduce yourselves?
A In a polite manner, sir.
Q What did you say when you introduced yourselves?
A We asked him what he was holding in his hands, sir.
Q And what was the reaction of the person when you asked him what he was holding
in his hands?
A He tried to resist, sir.
Q When he tried to resist, what did you do?
A I requested him if I can see what was he was (sic) holding in his hands.
Q What was the answer of the person upon your request?
A He allowed me to examine that something in his hands, sir.
xxx xxx xxx
Q What was he holding?
A He was holding his wallet and when we opened it, there was a marijuana (sic)
crushed residue.
Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto during the
trial. A valid waiver of a right, more particularly of the constitutional right against unreasonable search, requires
the concurrence of the following requirements: (1) the right to be waived existed; (2) the person waiving it had
knowledge, actual or constructive, thereof; and (3) he or she had an actual intention to relinquish the
right.26 Otherwise, the Courts will indulge every reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure to exercise this elementary right. In the present
case, however, petitioner is deemed to have waived such right for his failure to raise its violation before the trial
court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where the whole
case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues not raised
below cannot be pleaded for the first time on appeal.27
Second Issue: Assessment of Evidence
Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable and
unexplained" contradictions which did not support petitioner's conviction.
We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility of witnesses,
particularly when affirmed by the Court of Appeals as in this case, is accorded great weight and respect, since it
had the opportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts
and circumstances have been overlooked or misappreciated by the trial court which, if considered, would
materially affect the result of the case, we will not countenance a departure from this rule. 28
We concur with Respondent Court's ruling:
(e)ven assuming as contended by appellant that there had been some inconsistencies in the
prosecution witnesses' testimonies, We do not find them substantial enough to impair the essential
veracity of their narration. In People vs. Avila, it was held that — "As long as the witnesses concur on
the material points, slight differences in their remembrance of the details, do not reflect on the essential
veracity of their statements.
However, we find that, aside from the presumption of regularity in the performance of duty, the bestowal of full
credence on Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas'
contradictory testimony, that of Espiritu is supported by the Joint Affidavit29 signed by both arresting policemen.
The question of whether the marijuana was found inside petitioner's wallet or inside a plastic bag is immaterial,
considering that petitioner did not deny possession of said substance. Failure to present the wallet in evidence
did not negate that marijuana was found in petitioner's possession. This shows that such contradiction is minor
and does not destroy Espiritu's credibility.30
Third Issue: Sufficiency of Evidence
The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or object which
is identified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and
consciously possessed the said drug.31
The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be
crushed marijuana leaves. Petitioner's lack of authority to possess these leaves was established. His awareness
thereof was undeniable, considering that petitioner was high on drugs when stopped by the policemen and that
he resisted when asked to show and identify the thing he was holding. Such behavior clearly shows that
petitioner knew that he was holding marijuana and that it was prohibited by law.
WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner is
sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum,
and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to believe the Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.
extortion angle in this case. Petitioner did not file any administrative or criminal case against the arresting officers
or present any evidence other than his bare claim. His argument that he feared for his life was lame and
unbelievable, considering that he was released on bail and continued to be on bail as early as April 26,
1988.32 Since then, he could have made the charge in relative safety, as he was no longer in the custody of the
police. His defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is easy to concoct and
fabricate.33
G.R. No. 153254 September 30, 2004
The Proper Penalty
PEOPLE OF THE PHILIPPINES, appellee,
The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as amended) by vs.
sentencing petitioner to a straight penalty of six years and one day of imprisonment, aside from the imposed fine EDEN DEL CASTILLO, appellant.
of six thousand pesos. This Act requires the imposition of an indeterminate penalty:
DECISION
Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term AUSTRIA-MARTINEZ, J.:
of which shall be that which, in view of the attending circumstances, could be properly imposed under
the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense; and if the offense is punished by any other law, the court Eden del Castillo appeals from the decision dated June 27, 20011 of the Regional Trial Court of Cebu City,
shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed Branch 18, in Criminal Case No. CBU-54778, finding her guilty of violation of Section 16, Article III of R.A. No.
the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by 6425, otherwise known as Dangerous Drugs Act of 1972, as amended; and imposing on her the penalty
the same. (As amended by Act No. 4225.) of reclusion perpetua.

Sec. 2. This Act shall not apply to persons convicted of offenses punished with death penalty or life-
imprisonment; to those convicted of treason; to those convicted of misprision of treason, rebellion,
sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who
shall have escaped from confinement or evaded sentence; to those who having been granted
conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose
maximum term of imprisonment does not exceed one year, not to those already sentenced by final
judgment at the time of approval of this Act, except as provided in Section 5 hereof. (Emphasis
supplied)
She was indicted under an Information dated August 2, 2000 which reads:
That on or about the 31st day of July 2000, at about 10:30 A.M., in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, with deliberate intent and without being
authorized by law, did then and there have in her possession and control or use the following:
A- Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86
grams;

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal
B- Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33
possession of marijuana:
grams;

Sec. 8. . . . .
C- Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75
grams
The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging
from six thousand to twelve thousand pesos shall be imposed upon any person who, unless authorized
locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug, without the
by law, shall possess or use Indian hemp.
corresponding license or prescription.

Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of
CONTRARY TO LAW.2
imprisonment ranging from six years and one day to twelve years. 34
Upon her arraignment, appellant, with the assistance of counsel, pleaded not guilty to the crime charged. 3 Trial
thereafter ensued.
The prosecution presented the following witnesses: PO3 Leopoldo Bauzon, PO3 Alfredo Petallar, P/Insp. Mutchit
Salinas and PO2 Brazilio Borinaga. Their testimonies proved the following facts:
On July 21, 2000, a search warrant was issued by Judge Isaias Dicdican of the Regional Trial Court,
Branch 11, Cebu City, authorizing the search and seizure of shabu and its paraphernalias in the house
of appellant located in M. Borgonia Street, Hayco, Mabolo, Cebu City. 4 At about 10:30 in the morning of
July 31, 2000, a team composed of Police Chief/Insp. Pablo Gacayan Labra II, Bauzon, Petallar and
Borinaga, PO2 Ricardo Baclayon, Jr. and PO1 Jeric Cuyos Toring, went to the subject house to
implement the search warrant.5 The police officers accompanied by three barangay tanods, namely:
Wilfredo Wasawas, Mansueto Toong and Leonico Sagosa, entered the house, saw appellant and
served the warrant on her.6 At that time, appellant was with her grandmother Elena Rivaral Garcia, the
registered owner of the house, and Servando del Castillo, appellant’s brother, in the living room. The
police officers "pressed" them by telling them not to move and they were asked to just sit down while
the search was on-going.7
The raiding team divided themselves into two searching groups. The first group composed of Bauzon, Toring and
one barangay tanod searched the upper portion of the house and found three large plastic packs of white
crystalline substance.8 The second group, composed of Baclayon and Borinaga, searched the ground floor and
found eight medium heat-sealed plastic packs of white crystalline substance and fifty-three heat-sealed plastic
packets of white crystalline substance; two disposable lighters, one pair of scissors, one tooter, one puller and an
improvised hacksaw.9 Servando voluntarily surrendered five small packs of white crystalline
substance.10 Appellant was arrested and informed of her constitutional rights, specifically, the right to counsel to
which she replied that she has a lawyer who will represent her. 11 Petallar then prepared an inventory of the
seized articles and appellant was made to sign the same.12 PO3 Bauzon and PO3 Petallar explained that the
inventory receipt was dated July 24, 2000 although the raid was conducted on July 31 because their office had
earlier prepared the blank form.13 A copy of the inventory was given to a tanod14 and thereafter appellant and
Servando were brought to the police station while the items seized were brought to the Philippine National Police
(PNP) Crime Laboratory for examination.15
P/Insp. Mutchit Salinas, chemist of the PNP Regional Crime Laboratory Office, who conducted the laboratory test
on these substances confirmed that the specimens submitted for testing were positive for the presence of
methamphetamine hydrochloride known as shabu.16
The defense presented the following witnesses: Elena R. Garcia, Jaime Garcia and appellant herself who
testified to establish the following facts:
The house subject of the search on July 31, 2000 was owned by Elena, appellant’s grandmother, and
her late husband, Jose Garcia, as evidenced by a copy of Tax Declaration No. 01-30651 in the name of
Jose Garcia;17 that only Brent Lepiten, Elena’s grandson, was living in the house while appellant was
living with her parents in San Vicente Village, Wireless, Mandaue City, a distance of about five
kilometers from Elena’s place.18 On July 31, 2000, Elena, who was in the upper portion of the house
with her son, Jaime, who happened to sleep in her house the night before because he had a drinking
spree with some friends, went downstairs because of the thudding sound from their door. 19 Appellant,
who was in the house to visit her grandmother, was having breakfast when the door was opened.
Several men entered the house and instructed them to sit down. Two of these men carrying an
envelope went upstairs and woke up Jaime Garcia.20 Jaime then went downstairs and these two men
without the envelope followed two minutes later.21Appellant and the other occupants were told to wait
for the arrival of the tanods. Then, the same two men who earlier went upstairs went up again with
a tanod and when they came down, they had with them an envelope, the contents of which were spread
on the table and were listed down.22 Appellant was then asked to sign a paper where a listing of the
contents of the envelope was made but she requested to contact her lawyer which was
denied.23 She was forced to sign otherwise she would be handcuffed.24 The list of the
inventory was neither read to her nor did they leave a copy for her or to any of the
occupants.25 Appellant declared that the search warrant was served on her but she never read
it nor was it read to her.26
On June 27, 2001, the trial court rendered its assailed decision 27 finding appellant guilty as charged. The decretal
portion of the decision reads:
WHEREFORE, finding accused Eden del Castillo guilty beyond reasonable doubt of the crime charged,
the accused is hereby sentenced to suffer the penalty of Reclusion Perpetua. The seized or confiscated
items are declared forfeited in favor of the government and the same shall be disposed of in the manner
allowed by law.28
In convicting appellant, the trial court ratiocinated:
After a careful analysis of the testimonial and documentary evidence on record, the Court is of the well
considered view and so holds that the prosecution was able to establish the fact that the accused had
indeed, with deliberate intent and without being authorized by law, in her possession and control or use
on or about July 31, 2000 at about 10:30 A.M. the following:
A - Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86
grams;
B - Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33
grams;
C - Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75
grams
locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug,
without the corresponding license or prescription. The members of the Philippine National
Police (PNP), by virtue of a Search Warrant issued against Eden Garcia del Castillo by Judge
Isaias Dicdican and implemented on July 31, 2000 resulted in the acquisition of said items.
The items were submitted to the PNP Crime Laboratory for analysis and the result is positive
for the presence of Methylamphetamine Hydrochloride, or locally known as shabu. No less
than the accused signed the Receipt for Confiscated Articles signifying that the Raiding Team
of the Philippine National Police had actually seized and confiscated certain items or articles
from the herein accused. The prosecution then was able to establish the guilt of the accused
beyond reasonable doubt.
Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as
amended by R.A. 7659 reads as follows:
 SEC. 16. Possession or Use of Regulated Drugs. – The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who shall possess or use any regulated drug without the corresponding license or prescription, subject
to the provisions of Section 20 hereof.
Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as
amended by R.A. 7659 reads as follows:
SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the
Crime. – The penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the
following quantities:
...
3. 200 grams or more of shabu or methylampetamine hydrochloride; . . .29
Hence, the instant appeal with the following assignment of errors: 30
I
THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT A CLEAR AND DISTINCT
FINDINGS OF FACTS (WHICH) PROVED THAT ACCUSED DID NOT OWN THE HOUSE WHICH
WAS SEARCHED.
II
THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT THAT THE ARTICLES
SEIZED BY VIRTUE OF A SEARCH WARRANT WERE NOT TURNED OVER TO THE ISSUING
COURT IN VIOLATION OF THE LAW.
III
THE LOWER COURT ERRED IN NOT FINDING THAT THE RAIDING TEAM FAILED TO ISSUE A
DETAILED RECEIPT OF SEIZED ARTICLES AND TO GIVE A COPY THEREOF TO THE LAWFUL
OCCUPANT IN VIOLATION OF THE LAW.
IV
THE LOWER COURT ERRED IN NOT FINDING THAT BY THE RAIDING TEAM ORDERING
ACCUSED TO SIGN THE INVENTORY AFTER THE ARREST WITHOUT THE ASSISTANCE OF
COUNSEL IS VIOLATIVE OF HER CONSTITUTIONAL RIGHT.
V
THE LOWER COURT ERRED IN NOT FINDING THAT THE RAID WAS IN VIOLATION OF THE
PRIVACY OF ELENA R. GARCIA, AS OWNER OF THE HOUSE BEING SEARCHED, AND NOT THE
HOUSE OF ACCUSED EDEN DEL CASTILLO.
VI
THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED.
The Office of the Solicitor General (OSG) filed a Manifestation and Motion in lieu of appellee’s brief praying that
the decision under consideration be reversed and set aside and that the appellant be acquitted.
We agree with the OSG. The appeal is meritorious.
Section 16 of Article III of the Dangerous Drugs Act of 1972, as amended, provides:
SEC. 16. Possession or Use of Regulated Drugs. – The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person
who shall possess or use any regulated drug without the corresponding license or prescription, subject
to the provisions of Section 20 hereof.
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found
in possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and,
(c) the accused has knowledge that the said drug is a regulated drug.
In People vs. Tira,31 we explained the concept of possession of regulated drugs, to wit:
This crime is mala prohibita, and as such, criminal intent is not an essential element. However, the
prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but also constructive possession.
Actual possession exists when the drug is in the immediate physical possession or control of the
accused. On the other hand, constructive possession exists when the drug is under the dominion and
control of the accused or when he has the right to exercise dominion and control over the place where it
is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his
right to exercise control and dominion over the place where the contraband is located, is shared with
another.
Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession
would not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence
and any reasonable inference drawn therefrom. However, the prosecution must prove that the accused had
knowledge of the existence of the presence of the drug in the place under his control and dominion and the
character of the drug. Since knowledge by the accused of the existence and character of the drugs in the place
where he exercises dominion and control is an internal act, the same may be presumed from the fact that the
dangerous drugs is in the house or place over which the accused has control or dominion, or within such
premises in the absence of any satisfactory explanation.
Prosecution witnesses failed to establish that the house where the shabu and other shabu paraphernalias were
found belongs to appellant. On the other hand, defense evidence clearly showed that the subject house belongs
to appellant’s grandmother, Elena Garcia, who testified in direct examination as follows:
ATTY. RIVERAL: A Two storeys.

Q You stated in your personal circumstances that you are a resident of Mabolo, Cebu City. Do you own ATTY. RIVERAL:
a house?
Q You mean the ground floor and the upper portion?
A Yes, I owned a house.
A Yes, sir.
Q With whom are you living therewith?
Q Where do you usually take your rest in the evening?
A My grandson.
A In the upper portion.
Q What is the name of your grandson living with you at that house?
Q Do you know accused Eden del Castillo?
A Brent Lepiten.
A Yes, she is one of my grandchildren.
Q You stated that you owned a house in Mabolo, Cebu City which was the subject of the search. Do
you have any evidence to show that you owned that house? Q Where is she living?

A Yes, I have. A San Vicente Village, Wireless, Mandaue City.

Q Showing to you this machine copy which is Tax Declaration No. 01-30651 in the name of Jose Q Is accused Eden del Castillo still single?
Garcia. Is this the tax declaration evidencing your ownership and possession of your house?
A She is still single.
A Yes, that is the one.
Q With whom is she living with before the arrest?
Q How are you related to Jose Garcia?
A Together with her auntie Edna Aballe.
A My husband.
Q How about her parents?
Q Where is he now?
A Sometime(s) when they traveled at Badian only Eden is in the house together with her auntie but they
A He is already dead. stayed in their house.

ATTY. RIVERAL: Q On July 31, 2000 in that evening who was sleeping at the upper portion of your house?

We request Your Honor that the machine copy of the tax declaration be marked as our Exhibit "1". A Myself and my grandson.

COURT: Q You are mentioning of Jaime, who is this Jaime?

Mark it. FISCAL LABORTE:

ATTY. RIVERAL: The witness was only asked who slept at the upper portion and she answered myself and my grandson.

Q The house which you mentioned belongs to you, how many storeys are there? ATTY. RIVERAL:
 Q You mentioned one Jaime Garcia, why was he there?
A This Jaime was able to sleep in the house at that time considering that his wife was abroad.
...
ATTY. RIVERAL:
Q That Jaime Garcia you said where did he take his rest that night?
A At our house.
Q In what portion thereof?
A At the upper portion.32
The evidence of the prosecution failed to establish by competent evidence that appellant is the owner or at least
shared the ownership of the house where the shabu was found. PO3 Petallar testified that based on their own
casing operation, appellant frequented the subject house to eat meals; 33 that they were not sure that the house
was owned by appellant but only believed that she had belongings therein since she frequented the same. 34 PO2
Borinaga testified it was a public knowledge that appellant was living in the subject house since she was a
child.35Thus, there is no competent evidence that appellant had control and dominion over the place where
the shabu was found. The claim of appellant that she has her residence in San Vicente Village, Wireless,
Mandaue City and that she was only a visitor in the house that belongs to her grandmother at the time of the
search was not rebutted by convincing evidence.
While it is not necessary that the property to be searched or seized should be owned by the person against
whom the search warrant is issued, however, there must be sufficient showing that the property is under
appellant’s control or possession.36
The prosecution likewise failed to prove appellant’s possession of the shabu at the time of her arrest. It bears
stressing that at the time the raiding team conducted the search, appellant and the other occupants were asked
to stay in the living room. PO3 Petallar did not find any drugs on appellant’s body nor was there anything unusual
or suspicious noted in her person.37
Notably, the policemen testified that they found the shabu in the upper portion of the house, however, it was not
shown at all in whose room it was found. In fact, the defense evidence showed that at the time the two policemen
went upstairs, Jaime Garcia, appellant’s uncle, was asleep and was awakened by the policemen who asked him
to go down. This was corroborated by PO2 Borinaga who testified on cross-examination that while he was
downstairs, there was a person upstairs who came down.38 Moreover, it was appellant’s grandmother and the
latter’s grandson, Brent, who were staying in the upper portion of the house. Also, the shabu found at the ground
floor of the house does not conclusively establish that it belongs to appellant since it was not found together with
the other things of appellant. To reiterate, she was not the only person who had access to the entire house. In
fact, it was also shown by the prosecution that a certain Servando, appellant’s brother, voluntarily surrendered
five small plastic packs of white crystalline substance. We find that the prosecution failed to prove convincingly
that the seized shabu belonged to appellant.
Moreover, the manner in which the search was conducted on the subject house failed to comply with the
mandatory provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, which provides:
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses – No search of a
house, room, or any other premise shall be made except in the presence of the lawful occupant thereof
or any member of his family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality.
Clearly, the search of the house must be done in the presence of the lawful occupants and it is only in the
absence of the former that two witnesses of sufficient age and discretion residing in the same locality may be
called upon to witness the search. While appellant and the other occupants of the house were present during the
search, they were not allowed to actually witness the search of the premises. They were in the words of the
policemen "pressed," i.e., they were asked to stay put in the sala where they were seated while the simultaneous
search was on-going in the upper and lower portions of the house.39 They should be the ones that should have
accompanied the policemen while the search was being done and not substituted by the barangay tanods in their
stead. We held in People vs. Go:40
As pointed out earlier, the members of the raiding team categorically admitted that the search of the
upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take
place in the presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his
son Jack Go (who was handcuffed to a chair on the ground floor). Such a procedure, whereby the
witnesses prescribed by law are prevented from actually observing and monitoring the search of the
premises, violates both the spirit and the letter of the law:
Furthermore, the claim of the accused-appellant that the marijuana was planted is
strengthened by the manner in which the search was conducted by the police authorities. The
accused-appellant was seated at the sala together with Sgt. Yte when they heard someone in
the kitchen uttered "ito na". Apparently, the search of the accused-appellant’s house was
conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically provides
that no search of a house, room or any other premise shall be made except in the presence of
the lawful occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same locality.
This requirement is mandatory to ensure regularity in the execution of the search warrant.
Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code.
As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al., a procedure,
wherein members of a raiding party can roam around the raided premises unaccompanied by any
witness, as the only witnesses available as prescribed by law are made to witness a search conducted
by the other members of the raiding party in another part of the house, is violative of both the spirit and
letter of the law.
That the raiding party summoned two barangay kagawads to witness the search at the second floor is
of no moment. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in
whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides
that the search should be witnessed by "two witnesses of sufficient age and discretion residing in the
same locality" only in the absence of either of the lawful occupant of the premises or any member of his
family. Thus, the search of appellant’s residence clearly should have been witnessed by his son Jack
Go who was present at the time. The police officers were without discretion to substitute their choice of
witnesses for those prescribed by the law.
 ...
The search conducted by the police officers of appellant’s residence is essentially no different from that
in People v. Del Rosario where this Court observed:
We thus entertain serious doubts that the shabu contained in a small canister was actually
seized or confiscated at the residence of the accused-appellant. In consequence, the manner
the police officers conducted the subsequent and much delayed search is highly irregular.
Upon barging into the residence of the accused-appellant, the police officers found him lying
down and they immediately arrested and detained him in the living room while they searched
the other parts of the house. Although they fetched two persons to witness the search, the
witnesses were called in only after the policeman had already entered accused-appellant’s
residence (PP. 22-23, tsn, December 11, 1991), and therefore, the policemen had more ample
time to plant the shabu. Corollary to the Constitutional precept that, in all criminal prosecutions,
the accused shall be presumed innocent until the contrary is proved (Section 14[2], Article III,
Constitution of the Republic of the Philippines) is the rule that in order to convict an accused
the circumstances of the case must exclude all and each and every hypothesis consistent with
his innocence (People vs. Tanchoco, 76 Phil 463 [1946]; People vs. Constante, 12 SCRA
653[1964]; People vs. Jara, 144 SCRA 516[1986]). The facts of the case do not rule out the
hypothesis that accused-appellant is innocent.
We also find that the raiding team failed to comply with the procedures on search and seizures provided under
Sections 11 and 12, Rule 126 of the Rules on Criminal Procedure, to wit:
SEC. 11. Receipt for the property seized. – The officer seizing the property under the warrant must give
a detailed receipt for the same to the lawful occupant of the premises in whose presence the search
and seizure were made, or in the absence of such occupant, must, in the presence of at least two
witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in
which he found the seized property.
SEC. 12. Delivery of property and inventory thereof to the court. – The officer must forthwith deliver the
property seized to the judge who issued the warrant, together with a true inventory thereof duly verified
under oath.
Clearly, the detailed receipt of the inventory must be given to the lawful occupant. In this case, however, PO3
Petallar admitted that the inventory receipt was given to the barangay tanod41 despite the presence of the
appellant and her grandmother which is a violation of the rule.
Likewise, the police officers failed to deliver the seized items to the court which issued the search warrant. It was
commanded in the search warrant that the seized articles be brought to the court which issued it to be dealt with
as the law directs. Under the rule, the seized property must be delivered by the officer to the judge who issued
the warrant. It must be accompanied with a true inventory thereof duly verified. The police officers all testified
that the confiscated shabu was brought to the PNP Crime Laboratory for examination. Faced with the same
circumstance, we held in People vs. Gesmundo:42
On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes judicial
notice of the usual practice of the San Pablo City police force of retaining possession of confiscated
specimens suspected of being marijuana by immediately forwarding them to the NBI or to an NBI
accredited physician for preliminary examination and/or laboratory examination before filing a case with
the city prosecutor’s office. The mere tolerance by the trial court of such a practice does not make it
right. Clearly, such practice violates the mandatory requirements of the law and defeats the very
purpose for which they were enacted. Speculations as to the probability of tampering with the evidence
cannot then be avoided.
The trial judge cites the case of Yee Sue Koy, et al vs. Mariano Almeda , et al. (70 Phil 141) to justify
the retention by the police and the NBI of the custody of the allegedly confiscated specimens. While in
said decision, this court recognized the fact that the objects seized were retained by the agents of the
Anti-Usury Board, instead of being turned over to the Justice of the Peace of Sagay, yet the Court also
held that it was "for the reason that the custody of said agents is the custody of the issuing officer or
court, the retention having been approved by the latter." Thus, approval by the court which issued the
search warrant is necessary for the retention of the property seized by the police officers; and only then
will their custody be considered custody of the court. Absent such approval, the police officers have no
authority to retain possession of the marijuana and more so, to deliver the property to another agency,
like the NBI.43
Moreover, the inventory receipt was not certified under oath by any of the members of the raiding team as
required by the rule but was signed only by appellant and her brother.
The trial court erred in relying on the receipt of confiscated articles to establish that the raiding team had actually
seized the listed items therein. First, it is highly irregular that the inventory receipt was dated July 24, 2000 when
the actual raid was conducted on July 31, 2000. We find the explanation unacceptable given that the receipt was
already prepared earlier than the search. Such discrepancy affects the integrity of the inventory receipt. Second,
appellant signed the receipt without the assistance of counsel. It was established that at the time she signed the
receipt, she was already under custodial investigation. The testimony of PO3 Petallar is revealing:
Q When you saw the articles seized you were of the impression that they were illegal?
A Yes, sir.
Q Because of that impression you held Eden del Castillo in custody of the law?
A Yes, sir.
Q You handcuffed Eden del Castillo immediately?
A No, we do (sic) not handcuffed (sic) Eden del Castillo.
Q Although you do (sic) not handcuffed (sic) Eden del Castillo, the accused but virtually she was
already held in custody of the law?
A We effected the arrest.
Q So you begun listing down the articles which is supposedly seized?
A Upon the delivery of the seized articles from the searching parties I began listing.
Q You listed the articles in that prepared form, correct? ...

A Yes, sir.44 COURT:

Q In your joint affidavit, you stated in paragraph 7 "That we informed her Constitutional Right provided Q After you had told the accused that she is entitled to have counsel now what did the accused say, if
under the 1987 Phil. Constitution?" any?

A Yes, sir. A She told me that she would get a lawyer.

Q You informed her of her right under the Constitution because you wanted her to claim ownership of ATTY. RIVERAL:
the seized articles?
Q In effect, did she get a lawyer?
A We just informed her about her constitutional right.
A Not immediately.
Q So that after informing her of her constitutional right she signed this receipt or inventory of seized
articles, correct? ...

A Yes, sir. Q Thereafter was she able to get a lawyer?

Q So you asked her by interrogation or question whether or not you will concur to the entries listed in A When we arrived at the camp her sister told us that she had already hired a lawyer.
this inventory?
Q In effect, did that lawyer appear in the camp?
A Yes, sir.
A I never saw.
Q You also asked her that the search was conducted in a very orderly manner?
Q So accused would (sic) sign (sic) that instrument without the assistance of counsel?
A Yes, sir.
A Yes, sir.45
Q You also asked her that nothing was destroyed or lost inside the house?
While PO3 Petallar testified that appellant was read her constitutional right, it was not clearly shown that she was
A Yes, sir. informed of her right not to sign the receipt and that it can be used as an evidence against her. If appellant was
indeed informed of her constitutional right, it is unusual for her to sign the receipt acknowledging ownership of
Q That you also asked her that the members of the raiding team did not in any manner subjected (sic) the seized items without the assistance of counsel considering that she wanted to get a lawyer. In People vs.
them to unreasonable treatment? Go,46 we found the inventory receipt signed by appellant inadmissible for being violative of her custodial right to
remain silent, thus:
A Yes, sir.
After the inventory had been prepared, PO2 Abulencia presented it to appellant for his signature without
Q And that they were not exposed to embarrassment? any showing that appellant was informed of his right not to sign such receipt and to the assistance of
counsel. Neither was he warned that the same could be used as evidence against him. Faced with
similar circumstances, this Court in People v. Gesmundo stated:
A Yes, sir.
It is true that the police were able to get an admission from the accused-appellant that
Q Since you shoot (sic) several questions and informing her of the constitution(al) right(s) under the marijuana was found in her possession but said admission embodied in a document entitled
1987 Constitution did you tell her that you have the right to be assisted by counsel? "PAGPAPATUNAY" previously prepared by the police, is inadmissible in evidence against the
accused-appellant for having been obtained in violation of her rights as a person under
A I told her that. custodial investigation for the commission of an offense. The records show that the accused-
 appellant was not informed of her right not to sign the document; neither was she informed of
her right to the assistance of counsel and the fact that the document may be used as evidence
against her.
In People vs. Policarpio, this Court held that such practice of inducing suspects to sign receipts for
property allegedly confiscated from their possession is unusual and violative of the constitutional right to
remain silent, viz:
What the records show is that appellant was informed of his constitutional right to be silent and
that he may refuse to give a statement which may be used against him, that is why he refused
to give a written statement unless it is made in the presence of his lawyer as shown by the
paper he signed to this effect. However, he was made to acknowledge that the six (6) small
plastic bags of dried marijuana leaves were confiscated from him by signing a receipt and to
sign a receipt for the ₱20.00 bill as purchase price of the dried marijuana leaves he sold to Pat.
Mangila.
Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect
are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to
sign receipts for what were taken from him. It is the police officers who confiscated the same who should have
signed such receipts. No doubt this is a violation of the constitutional right of the appellant to remain silent
whereby he was made to admit the commission of the offense without informing him of his right. Such a
confession obtained in violation of the Constitution is inadmissible in evidence.
The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellant’s custodial
right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted
the search of appellant’s residence.
Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and
intelligent. To insure that a waiver is voluntary and intelligent, the Constitution 47 requires that for the right to
counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. 48 There is
no such written waiver in this case, much less was any waiver made in the presence of the counsel since there
was no counsel at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory
receipt without the assistance of counsel which is a violation of her right under the Constitution.
In all criminal cases, it is appellant’s constitutional right to be presumed innocent until the contrary is proved
beyond reasonable doubt. Thus in People vs. Del Norte,49 we said:
We detest drug addiction in our society. However, we have the duty to protect appellant where the
evidence presented shows "insufficient factual nexus" of her participation in the commission of the
offense charged. In People vs. Laxa, we held:
The government’s drive against illegal drugs deserves everybody’s support. But it cannot be
pursued by ignoble means which are violative of constitutional rights. It is precisely when the
government’s purposes are beneficent that we should be most on our guard to protect these
rights. As Justice Brandeis warned long ago, "the greatest dangers to liberty lurk in the
insidious encroachment by men of zeal, well meaning without understanding."
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE on the ground that the prosecution
failed to establish the guilt of appellant Eden del Castillo. She is hereby ACQUITTED of the crime charged
against her and her immediate release from confinement is hereby ordered unless she is lawfully held in custody
for another cause.
The Director of the Bureau of Corrections is ordered to forthwith implement this decision and to inform this Court,
within ten (10) days from receipt hereof, of the date appellant was actually released from confinement.
The shabu and other shabu paraphernalias seized during the search are forfeited in favor of the State.
SO ORDERED.
Puno, Callejo, Sr., Tinga, and Chico-Nazario*, JJ., concur.
G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and FRANCISCO JOSE, Provincial Fiscal of
Isabela,respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner complains that the respondent judge ordered him
to appear before the provincial fiscal to take dictation in his own handwriting from the latter.
The order was given upon petition of said fiscal for the purpose of comparing the petitioner's handwriting and
determining whether or not it is he who wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in these proceedings; but the respondents
contend that the petitioner is not entitled to the remedy applied for, inasmuch as the order prayed for by the
provincial fiscal and later granted by the court below, and again which the instant action was brought, is based
on the provisions of section 1687 of the Administrative Code and on the doctrine laid down in the cases of
People vs. Badilla (48 Phil., 718); United States vs. Tan Teng (23 Phil., 145); United States vs. Ong Siu Hong
(36 Phil., 735), cited by counsel for the respondents, and in the case of Villaflor vs. Summers (41 Phil., 62) cited
by the judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code, and the proper judge, upon motion of the
fiscal, may compel witnesses to be present at the investigation of any crime or misdemeanor. But this power
must be exercised without prejudice to the constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded, seeks refuge in the constitutional provision
contained in the Jones Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining whether the constitutional provision invoked by the
petitioner prohibits compulsion to execute what is enjoined upon him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law which (in Spanish) reads: "Ni se le obligara a
declarar en contra suya en ningun proceso criminal" and has been incorporated in our Criminal Procedure
(General Orders, No. 58) in section 15 (No. 4 ) and section 56.
As to the extent of the privilege, it should be noted first of all, that the English text of the Jones Law, which is the
original one, reads as follows: "Nor shall be compelled in any criminal case to be a witness against himself."
This text is not limited to declaracion but says "to be a witness." Moreover, as we are concerned with a principle
contained both in the Federal constitution and in the constitutions of several states of the United States, but
expressed differently, we should take it that these various phrasings have a common conception.
In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional
clauses; this much is conceded (ante, par. 2252). It is therefore immaterial that the witness is protected
by one constitution from 'testifying', or by another from 'furnishing evidence', or by another from 'giving
evidence,' or by still another from 'being a witness.' These various phrasings have a common
conception, in respect to the form of the protected disclosure. What is that conception? (4 Wigmore on
Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony, but extends to all giving or furnishing of
evidence.
The rights intended to be protected by the constitutional provision that no man accused of crime shall
be compelled to be a witness against himself is so sacred, and the pressure toward their relaxation so
great when the suspicion of guilt is strong and the evidence obscure, that is the duty of courts liberally
to construe the prohibition in favor of personal rights, and to refuse to permit any steps tending toward
their invasion. Hence, there is the well-established doctrine that the constitutional inhibition is directed
not merely to giving of oral testimony, but embraces as well the furnishing of evidence by other means
than by word of mouth, the divulging, in short, of any fact which the accused has a right to hold secret.
(28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis ours.)
The question, then, is reduced to a determination of whether the writing from the fiscal's dictation by the
petitioner for the purpose of comparing the latter's handwriting and determining whether he wrote certain
documents supposed to be falsified, constitutes evidence against himself within the scope and meaning of the
constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own behalf, denies that a certain writing or
signature is in his own hand, he may on cross-examination be compelled to write in open court in order that the
jury maybe able to compare his handwriting with the one in question.
It was so held in the case of Bradford vs. People (43 Pacific Reporter, 1013) inasmuch as the defendant, in
offering himself as witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378), where the judge asked the defendant to
write his name during the hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now before us. We are not concerned here with the
defendant, for it does not appear that any information was filed against the petitioner for the supposed
falsification, and still less as it a question of the defendant on trial testifying and under cross-examination. This is
only an investigation prior to the information and with a view to filing it. And let it further be noted that in the case
of Sprouse vs. Com., the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the form of writing of the defendant was
obtained before the criminal action was instituted against him. We refer to the case of People vs. Molineux (61
Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in the aforesaid case of Sprouse vs. Com., the
defendant voluntarily offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives prominence to the defendant's right to decline to
write, and to the fact that he voluntarily wrote. The following appears in the body of said decision referred to
(page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He preferred to accede to the latter's
request, and we can discover no ground upon which the writings thus produced can be excluded from
the case. (Emphasis ours.)
For the reason it was held in the case of First National Bank vs. Robert (41 Mich., 709; 3 N. W., 199), that the
defendant could not be compelled to write his name, the doctrine being stated as follows:
The defendant being sworn in his own behalf denied the endorsement.
He was then cross-examined the question in regard to his having signed papers not in the case, and
was asked in particular whether he would not produce signatures made prior to the note in suit, and
whether he would not write his name there in the court. The judge excluded all these inquiries, on
objection, and it is of these rulings that complaint is made. The object of the questions was to bring into
the case extrinsic signatures, for the purpose of comparison by the jury, and we think that the judge was
correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited (volume 4, page 878), says:
Measuring or photographing the party is not within the privilege. Nor it is the removal or replacement of
his garments or shoes. Nor is the requirement that the party move his body to enable the foregoing
things to be done. Requiring him to make specimens of handwriting is no more than requiring him to
move his body . . ." but he cites no case in support of his last assertion on specimens of handwriting.
We note that in the same paragraph 2265, where said authors treats of "Bodily Exhibition." and under
preposition "1. A great variety of concrete illustrations have been ruled upon," he cites many cases,
among them that of People vs. Molineux (61 N. E., 286) which, as we have seen, has no application to
the case at bar because there the defendant voluntary gave specimens of his handwriting, while here
the petitioner refuses to do so and has even instituted these prohibition proceedings that he may not be
compelled to do so.
Furthermore, in the case before us, writing is something more than moving the body, or the hands, or the fingers;
writing is not a purely mechanical act, because it requires the application of intelligence and attention; and in the
case at bar writing means that the petitioner herein is to furnish a means to determine whether or not he is the
falsifier, as the petition of the respondent fiscal clearly states. Except that it is more serious, we believe the
present case is similar to that of producing documents or chattels in one's possession. And as to such production
of documents or chattels. which to our mind is not so serious as the case now before us, the same eminent
Professor Wigmore, in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. — 1. It follows that the production of
documents or chattels by a person (whether ordinary witness or party-witness) in response to a
subpoena, or to a motion to order production, or to other form of process treating him as a witness ( i.e.
as a person appearing before a tribunal to furnish testimony on his moral responsibility for truthtelling),
may be refused under the protection of the privilege; and this is universally conceded. (And he cites the
case of People vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is a similarity between one who is compelled to
produce a document, and one who is compelled to furnish a specimen of his handwriting, for in both cases, the
witness is required to furnish evidence against himself.
And we say that the present case is more serious than that of compelling the production of documents or
chattels, because here the witness is compelled to write and create, by means of the act of writing, evidence
which does not exist, and which may identify him as the falsifier. And for this reason the same eminent author,
Professor Wigmore, explaining the matter of the production of documents and chattels, in the passage cited,
adds:
For though the disclosure thus sought be not oral in form, and though the documents or chattels be
already in existence and not desired to be first written and created by testimonial act or utterance of the
person in response to the process, still no line can be drawn short of any process which treats him as a
witness; because in virtue it would be at any time liable to make oath to the identity or authenticity or
origin of the articles produced. (Ibid., pp. 864-865.) (Emphasis ours.)
It cannot be contended in the present case that if permission to obtain a specimen of the petitioner's handwriting
is not granted, the crime would go unpunished. Considering the circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not be a difficult matter for the fiscal to obtained genuine specimens of
his handwriting. But even supposing it is impossible to obtain specimen or specimens without resorting to the
means complained herein, that is no reason for trampling upon a personal right guaranteed by the constitution. It
might be true that in some cases criminals may succeed in evading the hand of justice, but such cases are
accidental and do not constitute the raison d' etre of the privilege. This constitutional privilege exists for the
protection of innocent persons.
With respect to the judgments rendered by this court and cited on behalf of the respondents, it should be
remembered that in the case of People vs. Badilla (48 Phil., 718), it does not appear that the defendants and
other witnesses were questioned by the fiscal against their will, and if they did not refuse to answer, they must be
understood to have waived their constitutional privilege, as they could certainly do.
The privilege not to give self-incriminating evidence, while absolute when claimed, maybe waived by
any one entitled to invoke it. (28 R. C. L., paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23 Phil., 145), were the defendant did not
opposethe extraction from his body of the substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly stated that the court preferred to rest its decision
on the reason of the case rather than on blind adherence to tradition. The said reason of the case there
consisted in that it was the case of the examination of the body by physicians, which could be and doubtless was
interpreted by this court, as being no compulsion of the petitioner therein to furnish evidence by means
of testimonial act. In reality she was not compelled to execute any positive act, much less a testimonial act; she
was only enjoined from something preventing the examination; all of which is very different from what is required
of the petitioner of the present case, where it is sought to compel him to perform a positive, testimonial act, to
write and give a specimen of his handwriting for the purpose of comparison. Besides, in the case of Villamor vs.
Summers, it was sought to exhibit something already in existence, while in the case at bar, the question deals
with something not yet in existence, and it is precisely sought to compel the petitioner to make, prepare, or
produce by this means, evidence not yet in existence; in short, to create this evidence which may seriously
incriminate him.
Similar considerations suggest themselves to us with regard to the case of United States vs. Ong Siu Hong (36
Phil., 735), wherein the defendant was not compelled to perform any testimonial act, but to take out of his mouth
the morphine he had there. It was not compelling him to testify or to be a witness or to furnish, much less make,
prepare, or create through a testimonial act, evidence for his own condemnation.
Wherefore, we find the present action well taken, and it is ordered that the respondents and those under their
orders desist and abstain absolutely and forever from compelling the petitioner to take down dictation in his
handwriting for the purpose of submitting the latter for comparison.
Without express pronouncement as to costs. So ordered.
Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.
G.R. No. 77542 March 19, 1990
ELIAS CARREDO, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, VICTORIA CATOSTOS, and HON. GENEROSO A. JUABAN (Judge of
the Regional Trial Court of Cebu, Branch VII), respondents.
Amado G. Olis for petitioner.
Pedro L. Albino for private respondent.
GANCAYCO, J.:
The issue in this case is whether or not an accused who, after arraignment, waives his further appearance during
the trial can be ordered arrested by the court for non-appearance upon summons to appear for purposes of
identification.
On February 3, 1983, petitioner was charged with malicious mischief before the Municipal Trial Court of
Malabuyoc, Cebu City. He deposited a cash bond for his provisional liberty. Upon arraignment, he entered a plea
of not guilty and thereafter he filed a written waiver of appearance dated May 14, 1984 which reads as follows:
IN COMPLIANCE with the Letter of Institution No. 40, dated November 10, 1972, the
undersigned accused hereby waives his appearance during the trial or any stage thereof and
he agrees that in case he fails to appear for trial despite due notice, his absence will be
deemed as express waiver of his right to be present, and the Honorable Court may proceed
with the trial of his case as if he were present. In this connection, he admits that he could be
identified by witnesses who are testifying at the time that said accused was not present.
(Emphasis supplied)
SO ORDERED.
At the hearing on August 14, 1985 the prosecution moved for the recall of its principal witness for the purpose of
identifying the accused-petitioner who was not then present. Hence, the hearing was re-scheduled on October 9,
1985 and a subpoena was issued to petitioner who failed to appear on said date. The defense counsel justified
petitioner's absence in that the latter's presence can no longer be required as he already filed a written waiver of
appearance. Nevertheless, the municipal judge issued an order dated May 27, 1986 ordering the arrest of
petitioner, the confiscation of the cash bond, and at the same time ordering the bondsman, who is the petitioner
himself, to show cause why no judgment should be rendered against the bondsman.
A motion for reconsideration thereof having been denied, petitioner elevated the matter to the Regional Trial
Court of Cebu City through a petition for certiorari and prohibition. In an order dated January 28, 1987, the said
trial court denied the same. Hence, the herein petition for review on certiorari questioning the dismissal of the
petition by the trial court and submitting for determination the issue of whether or not petitioner can be
compelled, on pain of being arrested and his cash bond getting confiscated, to be present during the trial for
purposes of his identification by the prosecution witnesses in a complaint for malicious mischief despite his
written waiver of appearance. The issue is not new.
Section 19, Article 4 of the 1973 Constitution which was then in force provides as follows:
Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him to have a speedy, impartial and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustified. 1
It is the proper interpretation and application of this constitutional provision on which the resolution of this petition
depends.
In Aquino, Jr. vs. Military Commission No. 2 2 where a similar issue was presented, six justices were of the view
that petitioner may waive his right to be present at all stages of the proceedings, while five justices were in
agreement that he may so waive such right, except when he is to be identified. The result was that the order of
the respondent military commission requiring his presence at all times during the proceedings before it should be
modified in the sense that petitioner's presence shall be required only in the instance just indicated. 3
In People vs. Presiding Judge, 4 the accused was charged with murder before the Regional Trial Court of
Pangasinan. Upon his arraignment he manifested orally in open court that he is waiving his right to be present
during the trial. The prosecuting fiscal moved that the accused be compelled to appear and be present at the trial
so that he can be identified by the prosecution witnesses. This court sustained the position of the accused on the
strength of the ruling of this Court in Aquino. However, this Court made the following disquisition:
In the case of People vs. Prieto, Sr., 84 SCRA 198, it was held that "[r]espondent Judge
unfortunately assumed that thereby a defendant was thus conferred a fundamental right to
ignore the terms of the bond posted by him in accordance with his constitutional right to bail.
The present Constitution certainly has not made a dent on the traditional and correct concept
of a bail as given to allow the release of a person in the custody of the law on condition that he
would appear before any court whenever so required. Upon failure to do so, the warrant of
arrest previously issued can be a sufficient justification for his confinement." Further, in Aquino,
Jr. vs. Military Commission No. 2, et al., 63 SCRA 546, the late Chief Justice Fred Ruiz Castro,
in his concurring and dissenting opinion, clearly stated that "the accused may waive his
presence in the criminal proceedings except at the stages where identification of his person by
the prosecution witnesses is necessary. I might agree to the proposition of "total" waiver in any
case where the accused agrees explicitly and unequivocally in writing signed by him or
personally manifests clearly and indubitably in open court and such manifestation is recorded,
that whenever a prosecution witness mentions a name by which the accused is known, the
witness is referring to him and to no one else." Stated differently, the 1973 Constitution now
unqualifiedly permits trial in absentia even of capital offenses, provided that after arraignment
he may be compelled to appear for the purpose of identification by the witnesses of the
prosecution, or provided he unqualifiedly admits in open court after his arraignment that he is
the person named as the defendant in the case on trial. The reason for requiring the presence
of the accused, despite his waiver, is, if allowed to be absent in all the stages of the
proceedings without giving the People's witnesses the opportunity to identify him in court, he
may in his defense say that he was never identified as the person charged in the information
and, therefore, is entitled to an acquittal.
Furthermore, it is possible that a witness may not know the name of the culprit but can identify
him if he sees him again, in which case the latter's presence in court is necessary. 5
Thus, in People vs. Presiding Judge, 6 this Court reiterated the rule in Aquino that the accused may waive his
presence at the trial of the case his presence may be compelled when he is to be identified. Petitioner, however,
argues that he should not be ordered arrested for non-appearance since he filed a written waiver that "he admits
that he could be identified by witnesses who have testified at the time that said accused was not present"
following the ruling of this Court in People vs. Presiding Judge. The aforestated statement in the waiver of
appearance of petitioner that he admits he could be identified by the witnesses for the prosecution even in his
absence is not such unqualified admission contemplated in Presiding Judge. What is stated in Presiding Judge
as an exception is when the accused "unqualifiedly admits in open court after his arraingment the he is the
person named as defendant in the case on trial," no more no less. In the present case petitioner only admits that
he can be identified by the prosecution witnesses in his absence. He did not admit that he is the very person
named as defendant in the case on trial. His admission is vague and far from unqualified. He cannot therefore
seek the benefit of the exception recognized in Presiding Judge.
It is important to state that the provision of the Constitution authorizing the trial in absentia of the accused in case
of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to
meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this
case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the
prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by
its witnesses which is vital for the conviction of the accused. Such waiver of a right of the accused does not
mean a release of the accused from his obligation under the bond to appear in court whenever so required. 7 The
accused may waive his right but not his duty or obligation to the court.
WHEREFORE, the petition is DENIED without pronouncement as to costs.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
Ople vs Torres
293 scra 141 (1998)
Fact: The petitioner seek the attention of the court to prevent the shrinking of the right to privacy,
Petitioner prays that the court invalidate Administrative Order No. 308 entitled “Adoption of a National
Computerized Identification Reference System” on two important constitutional grounds, viz: one, it is
a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our
citizenry’s protected zone of privacy.adrianantazo.wordpress.com
Issue: Whether the implementation of AO No. 308 violates the Rights to Privacy enshrined in the
constitution?adrianantazo.wordpress.com
Held: Yes, A.O. No. 308 cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the “right to be let alone.” The right to
privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The potential for misuse of the data to be gathered under A.O.
No. 308 cannot be underplayed. The right to privacy is one of the most threatened rights of man living
in a mass society. The threats emanate from various sources — governments, journalists, employers,
social scientists, etc. In the case at bar, the threat comes from the executive branch of government
which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information
about themselves on the pretext that it will facilitate delivery of basic services. Given the record-
keeping power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives
the government the power to compile a devastating dossier against unsuspecting citizens. It is timely
to take note of the well-worded warning of Kalvin, Jr., “the disturbing result could be that everyone will
live burdened by an unerasable record of his past and his limitations. In a way, the threat is that
because of its record-keeping, the society will have lost its benign capacity to forget.” 89 Oblivious to
this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to privacy was not engraved in our
Constitution for flattery.
BLAS F. OPLE v. RUBEN D. TORRES, GR No. 127685, 1998-07-23
Facts:
Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is
a usurpation of the power of Congress to... legislate, and two, it impermissibly intrudes on our
citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the
petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996
A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner filed the instant petition against respondents, then
Executive Secretary Ruben Torres and the heads of the government agencies, who as... members of
the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308. On
April 8, 1997, we issued a temporary restraining order enjoining its implementation.
Petitioner contends:
"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A
SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION."
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL
REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE
POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF
CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION
REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY.[3]
Issues:
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress
is understandable
Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond
the power of the President to issue. He alleges that A.O. No. 308 establishes a system of
identification that is all-encompassing in... scope, affects the life and liberty of every Filipino citizen
and foreign resident, and more particularly, violates their right to privacy.
Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass
constitutional muster as an administrative legislation because facially it violates the right to privacy.
The essence of privacy is the "right to be let alone.
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined
in several provisions of our Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of
Rights:
"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:[34]
"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to... be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
x ... x x.
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as... may be provided by law.
x ... x x.
Sec. 8. The right of the people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself."
Ruling:
The right to privacy is one of the most threatened rights of man living in a mass society. The threats
emanate from various sources-- governments, journalists, employers, social scientists, etc.[88] In the
case at bar, the threat comes from the executive... branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy by giving information about themselves on the
pretext that it will facilitate delivery of basic services. Given the record-keeping power of the
computer, only the indifferent will... fail to perceive the danger that A.O. No. 308 gives the
government the power to compile a devastating dossier against unsuspecting citizens
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" declared null and void for being
unconstitutional.
Principles:
right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of
rights and the right most valued by civilized... men
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to alter and repeal them."[8] The Constitution, as
the will of the people in their... original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines.[9] The grant of legislative power to Congress is broad, general and
comprehensive.[10] The legislative body possesses plenary power... for all purposes of civil
government.[11] Any power, deemed to be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has lodged it elsewhere.[12] In fine, except as
limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest.[13]
While Congress is vested with the power to enact laws, the President executes the laws.[14] The
executive power is vested in the President.[15] It is generally defined as the power to enforce and
administer the... laws.[16] It is the power of carrying the laws into practical operation and enforcing
their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department.[18] He has control over the executive department,... bureaus and offices. This means
that he has the authority to assume directly the functions of the executive department, bureau and
office, or interfere with the discretion of its officials.[19] Corollary to the power of control, the President
also has the... duty of supervising the enforcement of laws for the maintenance of general peace and
public order. Thus, he is granted administrative power over bureaus and offices under his control to
enable him to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs.[21] It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his... agents.[22] To this end, he can issue
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate
to be covered by an administrative order. An administrative order is:
"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of
governmental operation in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
 It must be in harmony with the law and should be for the sole purpose of implementing the law and
carrying out the legislative... policy
Jose Jesus M. Disini, JR., Rowena S. Disini, Lianne Ivy P. Medina, Janette Toral and Ernesto Sonido,
JR., Petitioners vs The Secretary of Justice, The Secretary of the Department of the Interior and
Local government, The Executive Director of the Information and Communications Technology Office,
The Chief of the Philippine National Police, and The Director of the National Bureau of Investigation,
Respondents.
(The Disini Case) GR No. 203335 11 February 2014
Facts; These consolidated petitions seek to declare several provisions of Republic Act (RA) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.
The cybercrime law aims to regulate access to and use of the cyberspace. The cyberspace is a boon to the need
of a current generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace technology for
mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the reputation of
another or bully the latter by posting defamatory statements against him that people can read.
And because linking with the internet opens up a user to communication from others, the ill-motivated can use
the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations.
The wicked can use the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless
children who have access to the internet.
For these reasons, the government has a legitimate right to regulate the use of cyberspace and contain and
punish wrongdoings. The government certainly has the duty and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013, the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from implementing the cybercrime law until further orders.
ISSUES:
1. The petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people. Is Section 4(a)(1) on Illegal Access unconstitutional?
2. Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while is seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect
on these guaranteed freedoms.
3. Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or
take the name of another in satire, parody, or any other literary device.
4. Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
5. Petitioners claim that cybersex violates the freedom of expression clause of the Constitution.
6. Petitioners are wary that a person who merely doodles on paper and imagines a sexual abuse of a 16-year old is
not criminally liable for producing child pornography but one who formulates the idea on his laptop would be.
7. Is Section 4(c)(3) unconstitutional for penalizing the transmission of unsolicited commercial communications?
8. Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
9. Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who wilfully abets or
aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
10. Is Section 6 on the penalty of one degree higher constitutional?
11. Is Section 7 on the prosecution under both the Revised Penal Code (RPC) and RA 10175 constitutional?
12. Is Section 8 valid and constitutional?
13. Is Section 12 on Real-Time collection of traffic data valid and constitutional?
14. Is Section 13 on preservation of computer data valid and constitutional?
15. Is Section 14 on disclosure of computer data valid and constitutional?
16. Is Section 15 on search, seizure and examination of computer data valid and constitutional?
17. Is Section 17 on destruction of computer data valid and constitutional?
18. Is Section 19 on restricting or blocking access to computer data valid and constitutional?
19. Is Section 20 on obstruction of justice valid and constitutional?
20. Is Section 24 on Cybercrime Investigation and Coordinating Center (CICC) valid and constitutional?
21. Is Section 26(a) on CICC’s power and functions valid and constitutional?
Ruling:
1. No. The strict scrutiny standard, an American constitutional construct, is useful in determining the
constitutionality of laws that tend to target a class of things or persons. According to this standard, a legislative
classification that impermissibly interferes with the exercise of fundamental right or operates to the peculiar class
disadvantage of a suspect class is presumed unconstitutional. The Court finds nothing in Section 4(a)(1) that
calls for the application of the strict scrutiny standard since no fundamental freedom, like speech, is involved in
punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemnable act.
2. Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may
not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
speech. Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a form
of vandalism, the act of wilfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. Ergo, there is no freedom to destroy other people’s computer systems and private documents. All
penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect, or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what
is proper. But to prevent the State from legislating criminal laws because they instil such kind of fear is to render
the state powerless in addressing and penalizing socially harmful conduct.
3. No, the challenge to the constitutionality of Section 4(a)(6) is baseless. The law is reasonable in penalizing the
act of acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who are not
ill-motivated of the rightful opportunity of registering the same. It is the evil purpose for which one uses the name
that the law condemns.
4. No. In assessing the challenge that the State has impermissibly intruded into these zones of privacy, a court
must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. The law punishes those who acquire or
use identifying information without right, implicitly to cause damage. Petitioners fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well as the right
to due process. There is no fundamental right to acquire another’s personal right. The Court has defined intent to
gain as an internal act which can be established through overt acts of the offender, and it may be presumed from
the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent
on the part of the perpetrator. As such, the press, whether in the quest of news reporting or social investigation,
has nothing to fear since a special circumstance is present to negate intent to gain which is required by this
Section.
5. The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only
to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.
6. The constitutionality of Section 4(c)(3) is not successfully challenged. The law makes the penalty higher by one
degree when the crime is committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is a rational basis for such higher penalty.
7. Yes, because to prohibit the transmission of unsolicited ads would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which
us not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection. The State cannot rob him of this right without violating the
constitutionally guaranteed freedom of expression. Thus, unsolicited advertisements are legitimate forms of
expression.
8. Since the penal code and implicitly, the cybercrime law, mainly target libel against private persons, the Court
recognizes that these laws imply a stricter standard of malice to convict the author of a defamatory statement
where the offended party is a public figure. The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence
of malice.There is actual malice or malice in fact when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not. The reckless disregard
standard used here required a high degree of awareness of probable falsity. There must be sufficient evidence to
permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to establish actual malice. The defense of absence
of actual malice, even when the statement turns out to be false, is available where the offended party is a public
official or a public figure. But, where the offended party is a private individual, the prosecution need not prove the
presence of actual malice. For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.
9. A governmental purpose, which seeks to regulate the use of cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading
the area of protected freedoms. If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion of public issues. Democracy will be
threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement. The terms “aiding or abetting”
constitute broad sweep that generates chilling effect on those who express themselves through cyberspace
posts, comments, and other messages. Hence, Section 5 of the cybercrime law that punishes “aiding or abetting”
libel on the cyberspace is a nullity.
10. Yes, because there exists a substantial distinction between crimes committed through the use of information and
communication technology and similar crimes committed using other means. In using the technology in question,
the offender often evades identification and is able to reach far more victims or cause greater harm.
11. The Court resolves to leave the determination of the correct application of Section 7 that authorizes prosecution
of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, with the exception
of the crimes of:
1.
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double
jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is void and unconstitutional.
12. Valid and constitutional, because the matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative.
13. Void and unconstitutional, because Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the recipient. Thus, the authority that
Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
14. Valid and constitutional, because the user ought to have kept a copy of that data when it crossed his computer if
he was so minded. There was no undue deprivation of property since the data that service providers preserve on
orders of law enforcement authorities are not made accessible to users by reasons of the issuance of such
orders.
15. Valid and constitutional, because what Section 14 envisions is merely the enforcement of a duly issued court
warrant. Disclosure can be made only after judicial intervention.
16. Valid and constitutional, because Section 15 merely enumerates the duties of law enforcement authorities that
would ensure proper collection, preservation, and use of computer system or data that have been seized by
virtue of a court warrant.
17. Valid and constitutional, because it is unclear that the user has a demandable right to require the service
provider to have that copy of data saved indefinitely for him in its storage system.
18. Void and unconstitutional, because Section 19 not only precludes any judicial intervention but it also disregards
jurisprudential guidelines established to determine the validity of restrictions on speech.
19. Valid and constitutional insofar as it applies to the provisions of Chapter IV which are not struck down by the
Court.
20. and 21. Valid and constitutional, because cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. The law gave sufficient standards for the CICC to follow
when it provided a definition of cybersecurity.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application
for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our
minds the basic principles of popular government, and if we give expression to the paramount purpose for which
the courts, as an independent power of such a government, were constituted. The primary question is — Shall
the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine
Islands?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading
for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for
the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had
been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918,
the women were kept confined to their houses in the district by the police. Presumably, during this period, the city
authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with
the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to
orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended
upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that
awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were
under the impression that they were being taken to a police station for an investigation. They had no knowledge
that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region
and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were
received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for as
laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The
governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the
women were prostitutes who had been expelled from the city of Manila. The further happenings to these women
and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the
disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or
less clandestine relations with men, others went to work in different capacities, others assumed a life unknown
and disappeared, and a goodly portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of the deportees presented an application
for habeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the
parties, was made to include all of the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as including them. The application set forth the
salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain
unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed
that the writ should not be granted because the petitioners were not proper parties, because the action should
have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the
respondents did not have any of the women under their custody or control, and because their jurisdiction did not
extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal,
the 170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales.
In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been
sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales,
governor of the province of Davao, and Feliciano Yñigo, an hacenderoof Davao, to bring before the court the
persons therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of
counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as
commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the
writ was issued were produced in court by the respondents. It has been shown that three of those who had been
able to come back to Manila through their own efforts, were notified by the police and the secret service to
appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand
taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of
Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women
were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered
alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been
under his control, because they were at liberty in the Province of Davao, and because they had married or
signed contracts as laborers. Respondent Yñigo answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that the respondents had not complied with the
original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those
of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on
January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate
some other legal motives that made compliance impossible. It was further stated that the question of whether the
respondents were in contempt of court would later be decided and the reasons for the order announced in the
final decision.
Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and
policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13,
1919, the respondents technically presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the
respondents, by their returns, once again recounted the facts and further endeavored to account for all of the
persons involved in the habeas corpus. In substance, it was stated that the respondents, through their
representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-
one women were found in Davao who, on notice that if they desired they could return to Manila, transportation
fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means,
and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax,
members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the
attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city
fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final
decision. We will now proceed to do so.
One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from
society, and then at night, without their consent and without any opportunity to consult with friends or to defend
their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble
attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact
that the presence of the police and the constabulary was deemed necessary and that these officers of the law
chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor
and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant
locality within the Philippine Islands? We turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of
the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899
authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the
homeland. New York and other States have statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to
some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of
the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and
these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to
another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the
Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so
deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional
sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has
often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either
inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most
praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of
one thousand other municipalities of the Philippines have the same privilege. If these officials can take to
themselves such power, then any other official can do the same. And if any official can exercise the power, then
all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country, then officialdom can hold the same club over the
head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or
be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed;
nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We
will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111,
1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the
forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said
Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in
our system of government, and every man who by accepting office participates in its functions is only the more
strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of
the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of
the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or
any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any
country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S.,
356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the
very beginning that the primary question was whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1)
Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may
still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public
officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as
vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and
that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the
words of Judge Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if
to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416,
434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the
parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the
Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their
liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city
of Manila only extends to the city limits and that perforce they could not bring the women from Davao.
The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the
deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf.
(Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for
personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence
that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application
be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or
should have been made returnable before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge
of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the
Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure,
sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court
or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that
the women had any means by which to advance their plea before that court. On the other hand, it was shown
that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it
was shown that the case involved parties situated in different parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its
purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the
superior court to consider the application and then to grant the writ would have amounted to a denial of the
benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says
counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first
blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom
of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty
which began in Manila continued until the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other
municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court
and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should
be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a
person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of
police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same
officials must necessarily have the same means to return them from Davao to Manila. The respondents, within
the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her
domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has
no effective recourse. The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision. Nevertheless,
strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain
decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ
of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into
the State a minor child under guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin,
chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally
divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of
the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ
should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the
English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the
following eloquent passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the
petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the
petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is
so easy as is claimed here. If it is so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to
their notice. . . .
The second proposition — that the statutory provisions are confined to the case of imprisonment within
the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was
never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this
writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights
which existed. . . .
The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his jailor. It does not reach the former except through
the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free,
but the court relieves him by compelling the oppressor to release his constraint. The whole force of the
writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes
of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of
the court he can be compelled to release his grasp. The difficulty of affording redress is not increased
by the confinement being beyond the limits of the state, except as greater distance may affect it. The
important question is, where the power of control exercised? And I am aware of no other remedy. (In
the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell
[1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of English
by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of
the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant
until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance
of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was
impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher,
M. R., said:
 A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That is
a command to bring the child before the judge and must be obeyed, unless some lawful reason can be
shown to excuse the nonproduction of the child. If it could be shown that by reason of his having
lawfully parted with the possession of the child before the issuing of the writ, the defendant had no
longer power to produce the child, that might be an answer; but in the absence of any lawful reason he
is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ
without lawful excuse. Many efforts have been made in argument to shift the question of contempt to
some anterior period for the purpose of showing that what was done at some time prior to the writ
cannot be a contempt. But the question is not as to what was done before the issue of the writ. The
question is whether there has been a contempt in disobeying the writ it was issued by not producing the
child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to
have before the circuit court of the District of Columbia three colored persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the
writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to
show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus.
The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and
Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the
marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court
afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had
run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883],
111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defense offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied with the two orders of the Supreme Court
awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished
or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo
to present the persons named in the writ before the court on December 2, 1918. The order was dated November
4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as
the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram
to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the
parties in question being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have
produced the bodies of the persons according to the command of the writ; or (2) they could have shown by
affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3)
they could have presented affidavits to show that the parties in question or their attorney waived the right to be
present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf
the writ was granted; they did not show impossibility of performance; and they did not present writings that
waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that
the women were contended with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about
this number either returned at their own expense or were produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in finding the
respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for
the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat
similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in
Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the consequences; and we said that
he was bound to use every effort to get the child back; that he must do much more than write letters for the
purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything
that mortal man could do in the matter; and that the court would only accept clear proof of an absolute
impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the
women was made by the respondents. That the court forebore at this time to take drastic action was because it
did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the
judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to
mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and to have
shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a
critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude
that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it
should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be
made the object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this
connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the
police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo,
an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain
person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce
the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say
that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by
acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the
orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been drawn into the
case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him
innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney
for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done,
as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who
ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who
conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it
within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the
city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard
for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the
penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with
him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to
find that since respondent Lukban did comply substantially with the second order of the court, he has purged his
contempt of the first order. Some members of the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the
court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once command such respect without being
unduly oppressive — such an amount is P100.
In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five
days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record
the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against
respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision
may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from
illegal encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of
women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to
change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred and
fifty women were assembled and placed aboard a steamer and transported to Davao, considering that the
existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable that the mayor
of the city, in proceeding in the manner shown, acted without authority of any legal provision which constitutes an
exception to the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of
the mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The
said governmental authority, in carrying out his intention to suppress the segregated district or the community
formed by those women in Gardenia Street, could have obliged the said women to return to their former
residences in this city or in the provinces, without the necessity of transporting them to Mindanao; hence the said
official is obliged to bring back the women who are still in Davao so that they may return to the places in which
they lived prior to their becoming inmates of certain houses in Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent
disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if
we take into account the difficulties encountered in bringing the said women who were free at Davao and
presenting them before this court within the time fixed, inasmuch as it does not appear that the said women were
living together in a given place. It was not because they were really detained, but because on the first days there
were no houses in which they could live with a relative independent from one another, and as a proof that they
were free a number of them returned to Manila and the others succeeded in living separate from their
companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in
good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their
domicile, it is necessary to consider not only the rights and interests of the said women and especially of the
patrons who have been directing and conducting such a reproachable enterprise and shameful business in one
of the suburbs of this city, but also the rights and interests of the very numerous people of Manila where
relatively a few transients accidentally and for some days reside, the inhabitants thereof being more than three
hundred thousand (300,000) who can not, with indifference and without repugnance, live in the same place with
so many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be taken
into account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or
prostitution in the midst of an enlightened population, for, although there were no positive laws prohibiting the
existence of such houses within a district of Manila, the dictates of common sense and dictates of conscience of
its inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty
of ordering the closing and abandonment of a house of prostitution ostensibly open to the public, and of obliging
the inmates thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the
protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor
the constitutional law which guarantees his liberty and individual rights, should the administrative authority order
his hospitalization, reclusion, or concentration in a certain island or distant point in order to free from contagious
the great majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons
exist or stand good with respect to the unfortunate women dedicated to prostitution, and such reasons become
stronger because the first persons named have contracted their diseases without their knowledge and even
against their will, whereas the unfortunate prostitutes voluntarily adopted such manner of living and
spontaneously accepted all its consequences, knowing positively that their constant intercourse with men of all
classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the spread or
multiplication of the disease known as syphilis, a venereal disease, which, although it constitutes a secret
disease among men and women, is still prejudicial to the human species in the same degree, scope, and
seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great
mortality and very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her
sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is usually
older than she is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself
to this shameful profession, it is undeniable that she voluntarily and with her own knowledge renounces her
liberty and individual rights guaranteed by the Constitution, because it is evident that she can not join the society
of decent women nor can she expect to get the same respect that is due to the latter, nor is it possible for her to
live within the community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always subject to the
police and sanitary regulations conducive to the maintenance of public decency and morality and to the
conservation of public health, and for this reason it should not permitted that the unfortunate women dedicated to
prostitution evade the just orders and resolutions adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been
worrying so much about the prejudice resulting from a governmental measure, which being a very drastic remedy
may be considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city
in general and particularly the duties and responsibilities weighing upon the authorities which administer and
govern it; they have forgotten that many of those who criticize and censure the mayor are fathers of families and
are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they
assumed, were obliged to change their residence not by a private citizen but by the mayor of the city who is
directly responsible for the conservation of public health and social morality, the latter could take the step he had
taken, availing himself of the services of the police in good faith and only with the purpose of protecting the
immense majority of the population from the social evils and diseases which the houses of prostitution situated in
Gardenia Street have been producing, which houses have been constituting for years a true center for the
propagation of general diseases and other evils derived therefrom. Hence, in ordering the dissolution and
abandonment of the said houses of prostitution and the change of the domicile of the inmates thereof, the mayor
did not in bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every
Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of
which they have voluntarily renounced in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar
measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people, although it is
true that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in
forma, have been adopted, but such procedures have always had in view the ultimate object of the Government
for the sake of the community, that is, putting an end to the living together in a certain place of women dedicated
to prostitution and changing their domicile, with the problematical hope that they adopt another manner of living
which is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take
back and restore the said women who are at present found in Davao, and who desire to return to their former
respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should
expressly make known to the clerk of court their preference to reside in Davao, which manifestation must be
made under oath. This resolution must be transmitted to the mayor within the shortest time possible for its due
compliance. The costs shall be charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with
respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo
Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The
order was dated November 4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila waited
until the 21st of November before sending a telegram to the provincial governor of Davao. According to
the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in
Davao women who desired to return to Manila, but who should not be permitted to do so because of
having contracted debts. The half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the
purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to
the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could
not safely be brought before this court; and (3) presented affidavits to show that the parties in question or their
lawyers waived their right to be present. According to the same decision, the said respondents ". . . did not
produce the bodies of the persons in whose behalf the writ was granted; did not show impossibility of
performance; and did not present writings, that waived the right to be present by those interested. Instead, a few
stereotyped affidavits purporting to show that the women were contented with their life in Davao, some of which
have since been repudiated by the signers, were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated by
the fact that during this time they were easily to be found in the municipality of Davao, and that about this number
either returned at their own expense or were produced at the second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondent guilty of contempt of court, and in sending them to jail
until they obeyed the order. Their excuses for the non production of the persons were far from sufficient." To
corroborate this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q.
B. D., 283) and added "that the return did not show that every possible effort to produce the women was made
by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my opinion
was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a second order
referred to in the decision was issued on December 10, 1918, requiring the respondents to produce before the
court, on January 13, 1919, the women who were not in Manila, unless they could show that it was impossible to
comply with the said order on the two grounds previously mentioned. With respect to this second order, the same
decision has the following to say:
In response to the second order of the court, the respondents appear to have become more zealous
and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfillment with our mandate, we come to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of
the first order on November 4th till the 21st of the same month before taking the first step for compliance with the
mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to
the provincial governor o f Davao and naturally this half-hearted effort, as is so qualified in the decision, resulted
in that none of the women appeared before this court on December 2nd. Thus, the said order was not complied
with, and in addition to this noncompliance there was the circumstances that seven of the said women having
returned to Manila at their own expense before the said second day of December and being in the antechamber
of the court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and to the
attorney for the respondents, were not produced before the court by the respondents nor did the latter show any
effort to present them, in spite of the fact that their attention was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that the respondents, on January 13th,
the day fixed for the protection of the women before this court, presented technically the seven (7) women
above-mentioned who had returned to the city at their own expense and the other eight (8) women whom the
respondents themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in
bringing them from Davao with their consent; that in Davao they found eighty-one (81) women who, when asked
if they desired to return to Manila with free transportation, renounced such a right, as is shown in the affidavits
presented by the respondents to this effect; that, through other means, fifty-nine (59) women have already
returned to Manila, but notwithstanding the efforts made to find them it was not possible to locate the
whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who,
as has been previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and
transported to Davao against their will, only eight (8) have been brought to Manila and presented before this
court by the respondents in compliance with the said two orders. Fifty-nine (59) of them have returned to Manila
through other means not furnished by the respondents, twenty-six of whom were brought by the attorney for the
petitioners, Mendoza, on his return from Davao. The said attorney paid out of his own pocket the transportation
of the said twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the one hand,
the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918, giving as one
of the reasons for their inability to present any of the said women that the latter were content with their life in
Mindanao and did not desire to return to Manila; and, on the other hand, that the respondents, especially the first
named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the
orders issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as
before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74) women
already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and the
municipal police, and had transportation facilities for the purpose. But the said respondent mayor brought only
eight (8) of the women before this court on January 13th. This fact can not, in my judgment, with due respect to
the majority opinion, justify the conclusion that the said respondent has substantially complied with the second
order of this court, but on the other hand demonstrates that he had not complied with the mandate of this court in
its first and second orders; that neither of the said orders has been complied with by the respondent Justo
Lukban, Mayor of the city of Manila, who is, according to the majority decision, principally responsible for the
contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second order
confirms the contempt committed by non-compliance with the first order and constitutes a new contempt
because of non-compliance with the second, because of the production of only eight (8) of the one hundred and
eighty-one (181) women who have been illegally detained by virtue of his order and transported to Davao against
their will, committing the twenty-six (26) women who could not be found in Davao, demonstrates in my opinion
that, notwithstanding the nature of the case which deals with the remedy of habeas corpus, presented by the
petitioners and involving the question whether they should or not be granted their liberty, the respondent has not
given due attention to the same nor has he made any effort to comply with the second order. In other words, he
has disobeyed the said two orders; has despised the authority of this court; has failed to give the respect due to
justice; and lastly, he has created and placed obstacles to the administration of justice in the said habeas
corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said proceeding
with the promptness which the nature of the same required.
Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and
he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the
law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to
obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving
the officer or circumventing him by any means, the result is the same as though he had obstructed by
some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the
law and for the means it has provided in civilized communities for establishing justice, since true respect
never comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts
and obedience to their orders and just measures is so essentially a part of the life of the courts that it
would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be
said generally that where due respect for the courts as ministers of the law is wanting, a necessity
arises for the use of compulsion, not, however, so much to excite individual respect as to compel
obedience or to remove an unlawful or unwarranted interference with the administration of justice.
(Ruling Case Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been exercised from the earliest
times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his
ministers, the law-making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are concerned, and in some
degree so far as the legislative department is concerned, is obsolete, but it has been almost universally
preserved so far as regards the judicial department. The power which the courts have of vindicating
their own authority is a necessary incident to every court of justice, whether of record or not; and the
authority for issuing attachments in a proper case for contempts out of court, it has been declared,
stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling
Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the
authority of the court which issued the said orders, which loss might have been caused by noncompliance with
the same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by
some of the women illegally detained, in view of the fact that they were not brought to Manila by the respondents
to be presented before the court and of the further fact that some of them were obliged to come to this city at
their own expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his
own pocket the transportation of the said women; and the delay which was necessarily incurred in the resolution
of the petition interposed by the said petitioners and which was due to the fact that the said orders were not
opportunately and duly obeyed and complied with, are circumstances which should be taken into account in
imposing upon the respondent Justo Lukban the penalty corresponding to the contempt committed by him, a
penalty which, according to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding
P1,000 or imprisonment not exceeding months, or both such fine and imprisonment. In the imposition of the
penalty, there should also be taken into consideration the special circumstance that the contempt was committed
by a public authority, the mayor of the city of Manila, the first executive authority of the city, and consequently,
the person obliged to be the first in giving an example of obedience and respect for the laws and the valid and
just orders of the duly constituted authorities as well as for the orders emanating from the courts of justice, and in
giving help and aid to the said courts in order that justice may be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the
respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him.
Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the
Attorney-General in order that, after a study of the same and deduction from the testimony which he may deem
necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the corresponding informations for the prosecution and punishment of the
crimes which have been committed on the occasion when the illegal detention of the women was carried into
effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in Davao. This will be one of the means
whereby the just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands
there should exist a government of laws and not a government of men and that this decision may
serve to bulwark
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE
M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ
and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO
F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs,
Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and
Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition,
after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and under present circumstances pose a
threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989,
former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in widely and
passionately conflicting ways, and for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such time
as the government, be it under this administration or the succeeding one, shall otherwise
decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily;
and
3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that
the Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs.
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio
Araneta to return to the Philippines, and enjoin respondents from implementing President Aquino's decision to
bar the return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration
is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being
invoked by the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in
reality or substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy
orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner
herein, to show that there are compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view
that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's
decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual
scenario under which the Court's decision was rendered. The threats to the government, to which the return of
the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the
contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs.
Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal,"
claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that
the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested,
has unstated residual powers which are implied from the grant of executive power and which are necessary for
her to comply with her duties under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution.
This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit
the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not
a diminution of the general grant of executive power.
That the President has powers other than those expressly stated in the Constitution is nothing new. This is
recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers
among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the
United States of America." In Alexander Hamilton's widely accepted view, this statement
cannot be read as mere shorthand for the specific executive authorizations that follow it in
[sections] 2 and 3. Hamilton stressed the difference between the sweeping language of article
II, section 1, and the conditional language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he
[article III enumeration [in sections 2 and 31 ought therefore to be considered, as intended
merely to specify the principal articles implied in the definition of execution power; leaving the
rest to flow from the general grant of that power, interpreted in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme Court — accepted Hamilton's proposition, concluding
that the federal executive, unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional text: the executive power was given
in general terms, strengthened by specific terms where emphasis was regarded as
appropriate, and was limited by direct expressions where limitation was needed. . ." The
language of Chief Justice Taft in Myers makes clear that the constitutional concept of inherent
power is not a synonym for power without limit; rather, the concept suggests only that not all
powers granted in the Constitution are themselves exhausted by internal enumeration, so that,
within a sphere properly regarded as one of "executive' power, authority is implied unless there
or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159
(1978).]
And neither can we subscribe to the view that a recognition of the President's implied or residual powers is
tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual
powers of the President under the Constitution should not be confused with the power of the President under the
1973 Constitution to legislate pursuant to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or
a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the exigency, issue the
necessary decrees, orders, or letters of instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987 Constitution and the power of
the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to
an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to
protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance
with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave
abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met
with only passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death
no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that feeble
threat has died with him. As the government stresses, he has been reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or that or whatever
except by his fanatical followers. It is only a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no
kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it
forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a
dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised Penal
Code prohibits the commission of libel against a deceased individual. And even if we were to assume the non-
existence anymore of his human rights what about the human rights of his widow and the other members of his
family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military destabilization.
In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains to come, more trouble
may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the
request can mean a hardening of resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way for a united
citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the
quality of mercy is not strained." Surely, compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been
rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first cogent and
decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be buried in
this country. Will the respondents be allowed to complete the circle of denying the constitutional and human right
of Mr. Marcos to travel which, as stated in my dissenting opinion, includes the right to return to, die and be buried
in this country? The answer should be in the negative if the Constitution is to still prevail; the answer should be in
the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say
that the constitutional and human right to be buried in this country would apply to any Filipino, except Mr.
Marcos, because he was a dictator and he plundered the country. This is the most irrelevant argument that can
be raised at this time. For, our democracy is built on the fundamental assumption (so we believe) that the
Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, religious
or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national
security and public safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and public safety' in avoidance of a
specific, demandable and enforceable constitutional and basic human right to return." Recent events have, to my
mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot be
any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into mother earth, where
there are no protests, "demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters
would pose that threat to national security. This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be deprived of an otherwise potent argument—
so conducive to mass protests and even violence—that their Idol has been cruelly denied the right to be buried in
his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously asserted
long before his death. But, more importantly, the right of every Filipino to be buried in his country, is part of
a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for
the burial of Mr. Marcos in this country, but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my
respect and regard for my brethren and sisters in the majority, I am deeply concerned and greatly disturbed that,
with their decision banning a dead Marcos from burial in this country, they have passed an opportunity to defuse
a constitutional crisis that, in my humble assessment, threatens to ignite an already divided nation, Regrettably,
they have ignored the constitutional dimension of the problem rooted in the ageless and finest tradition of our
people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of
the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not
allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex-
President's bereaved to bury his remains in his homeland, and for them to return from exile. As I had, then, voted
to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the
President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the resolution
of the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly those relating to the commander-in-
chief clause, but not a diminution of the general grant of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of
the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a presidential
imprimatur, it would have said so. It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on
individual liberties, but more so, against presidential intrusions. And especially so, because the President is the
caretaker of the military establishment that has, several times over, been unkind to part of the population it has
also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic
effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses" would indeed interpose a threat to
national security. And apparently, the majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit,
reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only this morning (October 27, 1989),
media reported the assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point.
I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in his homeland.
As for the former, let them get their just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my vote for granting the petition. The death of Marcos has not
plunged the nation into paroxysms of grief as the so-called "loyalists" had hoped. By and large, it has been met
with only passing interest if not outright indifference from the people. Clearly, the discredited dictator is in death
no El Cid. Marcos dead is only an unpleasant memory, not a bolt of lightning to whip the blood.
This only shows that if he was at all a threat to the national security when he was already moribund that feeble
threat has died with him. As the government stresses, he has been reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver is not even regarded as a symbol of this or that or whatever
except by his fanatical followers. It is only a dead body waiting to be interred in this country.
This is a tempest in a teapot. We have more important things to do than debating over a corpse that deserves no
kinder fate than dissolution and oblivion. I say let it be brought home and buried deep and let us be done with it
forever.
PARAS, J., dissenting on the Motion for Reconsideration:
I find no reason to deviate from the dissenting opinion I have already expressed.
Firstly, the former President, although already dead, is still entitled to certain rights. It is not correct to say that a
dead man, since he is no longer a human being, has ceased to have rights. For instance, our Revised Penal
Code prohibits the commission of libel against a deceased individual. And even if we were to assume the non-
existence anymore of his human rights what about the human rights of his widow and the other members of his
family?
Secondly, up to now, the alleged threats to national security have remained unproved and consequently,
unpersuasive. Our Armed Forces can easily control any possible uprising or political and military destabilization.
In fact, the converse appears to be nearer the truth, that is, if we do not allow the remains to come, more trouble
may be expected.
Thirdly, reconciliation can proceed at a much faster pace if the petition for the return is granted. To refuse the
request can mean a hardening of resistance against the well-intentioned aim of the administration. Upon the
other hand, to grant the petition may well soften the hearts of the oppositionists; paving the way for a united
citizenry.
Finally, the entire world will surely applaud our government's act of mercy. As Shakespeare once wrote "the
quality of mercy is not strained." Surely, compassion is the better part of government. Remove mercy, and you
remove the best reason against civil strife, which if not abated can turn our country into a mainstream of fiery
dissent and in the end, as one great man has put it, the question will no longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E. Marcos, which supervened after decision in this case had been
rendered, was pre-empted and foreseen in my original dissenting opinion. There I said that the first cogent and
decisive proposition in this case is that "Mr. Marcos is a Filipino and, as such, entitled to return to, die and be
buriedin this country." I have only to add a few statements to that dissenting opinion.
Respondents have succeeded in denying Mr. Marcos the first two (2) rights, i.e. to return to and die in this
country, The remaining right of this Filipino that cries out for vindication at this late hour is the right to be buried in
this country. Will the respondents be allowed to complete the circle of denying the constitutional and human right
of Mr. Marcos to travel which, as stated in my dissenting opinion, includes the right to return to, die and be buried
in this country? The answer should be in the negative if the Constitution is to still prevail; the answer should be in
the negative if we are to avoid the completely indefensible act of denying a Filipino the last right to blend his
mortal remains with a few square feet of earth in the treasured land of his birth.
Those who would deny this Filipino the only constitutional and human right that can be accorded him now say
that the constitutional and human right to be buried in this country would apply to any Filipino, except Mr.
Marcos, because he was a dictator and he plundered the country. This is the most irrelevant argument that can
be raised at this time. For, our democracy is built on the fundamental assumption (so we believe) that the
Constitution and all its guarantees apply to all Filipinos, whether dictator or pauper, learned or ignorant, religious
or agnostic as long as he is a Filipino.
It is said that to accord this Filipino the right to be buried in this country would pose a serious threat to national
security and public safety. What threat? As pointed out in my dissenting opinion, the second cogent and decisive
proposition in this case is that respondents have not presented any "hard evidence" (factual bases) or convincing
proof of such threat. "All we have are general conclusions of national security and public safety' in avoidance of a
specific, demandable and enforceable constitutional and basic human right to return." Recent events have, to my
mind, served to confirm the validity of such dissenting statement.
If a live Marcos returning to this country did not pose a serious threat to national security, the situation cannot be
any worse with a dead Marcos returning. For, a dead Marcos will return to be buried into mother earth, where
there are no protests, "demos", or even dissents, where the rule that reigns, in the language of Mr. Justice
Jackson in Barnette is the "unanimity of the graveyard."
It is said that, while a dead Marcos has been rendered impotent to threaten national security, his supporters
would pose that threat to national security. This argument is untenable as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and order, with Marcos deprived of his right to burial in this country.
On the other hand, if the remains of Mr. Marcos are brought to the country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos' supporters would be deprived of an otherwise potent argument—
so conducive to mass protests and even violence—that their Idol has been cruelly denied the right to be buried in
his homeland.
It is also said that Mr. Marcos, in cadaver form, has no constitutional or human rights, to speak of. This
contention entirely begs the issue. In the first place, one cannot overlook that the right of Mr. Marcos, as a
Filipino, to be buried in this country, is asserted not for the first time after his death. It was vigorously asserted
long before his death. But, more importantly, the right of every Filipino to be buried in his country, is part of
a continuing right that starts from birth and ends only on the day he is finally laid to rest in his country.
This dissenting opinion does not pretend to deny the Philippine government the right to lay down conditions for
the burial of Mr. Marcos in this country, but I submit that these conditions must, as a fundamental postulate,
recognize the right of the man, as a Filipino, to be buried in this country NOW.
The majority resolution, in effect, bans Mr. Marcos' burial in this country now. Without in any way affecting my
respect and regard for my brethren and sisters in the majority, I am deeply concerned and greatly disturbed that,
with their decision banning a dead Marcos from burial in this country, they have passed an opportunity to defuse
a constitutional crisis that, in my humble assessment, threatens to ignite an already divided nation, Regrettably,
they have ignored the constitutional dimension of the problem rooted in the ageless and finest tradition of our
people for respect and deference to the dead. What predictably follows will be a continuing strife, among our
people, of unending hatred, recriminations and retaliations. God save this country!
My vote is for this Court to ORDER the respondents to allow the immediate return and burial in the Republic of
the Philippines of former President Ferdinand E. Marcos, subject to such conditions as the Philippine
government may impose in the interest of peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja vu, the shoe being on the other foot, yet, as I stated before, I can not
allow personal emotions to soften my "hardened impartiality" and deny, as a consequence, the rights of the ex-
President's bereaved to bury his remains in his homeland, and for them to return from exile. As I had, then, voted
to grant the petition, so do I vote to grant reconsideration.
I have gone to lengths to locate in the four comers of the Constitution, by direct grant or by implication, the
President's supposed "residual" power to forbid citizens from entering the motherland reiterated in the resolution
of the majority. I have found none. I am not agreed, that:
3. Contrary to petitioners view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This, notwithstanding the
avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of
the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a
limitation of specific powers of the President, particularly those relating to the commander-in-
chief clause, but not a diminution of the general grant of executive power.
It is a nice word game, but it is nothing else. For, if the Constitution has imposed limitations on specific powers of
the President, it has, a fortiori, prescribed a diminution of executive power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by fiat of law. Had the fundamental law intended a presidential
imprimatur, it would have said so. It would have also completed the symmetry: judicial, congressional, and
executive restraints on the right. No amount of presumed residual executive power can amend the Charter.
It is well to note that the Bill of Rights stands primarily, a limitation not only against legislative encroachments on
individual liberties, but more so, against presidential intrusions. And especially so, because the President is the
caretaker of the military establishment that has, several times over, been unkind to part of the population it has
also sworn to protect.
That "[t]he threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic
effect, have not been shown to have ceased" (Res., 3) is the realm of conjecture, speculation, and imagination.
The military has shown no hard evidence that "the return of the Marcoses" would indeed interpose a threat to
national security. And apparently, the majority itself is not convinced ("has been viewed...").
That Mrs. Marcos has referred to President Corazon Aquino as an illegitimate President, does not, so I submit,
reinforce alleged fears of a massive destabilization awaiting the nation. The military has said over and over that
Marcos followers are not capable of successful destabilization effort. And only this morning (October 27, 1989),
media reported the assurances given to foreign investors by no less than the President, of the political and
economic stability of the nation, as well as the Government's capability to quell forces that menace the gains of
EDSA.
I have no eulogies to say on the passing of Mr. Marcos. My personal impressions, however, are beside the point.
I reiterate that the President has no power to deny requests of Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their just deserts here too. And let the matter rest.
G.R. No. L-9637 April 30, 1957
AMERICAN BIBLE SOCIETY, plaintiff-appellant,
vs.
CITY OF MANILA, defendant-appellee.
City Fiscal Eugenio Angeles and Juan Nabong for appellant.
Assistant City Fiscal Arsenio Nañawa for appellee.
FELIX, J.:
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary corporation duly registered and doing
business in the Philippines through its Philippine agency established in Manila in November, 1898, with its
principal office at 636 Isaac Peral in said City. The defendant appellee is a municipal corporation with powers
that are to be exercised in conformity with the provisions of Republic Act No. 409, known as the Revised Charter
2nd quarter 1946 1,950.38
of the City of Manila.
3rd quarter 1946 2,235.99
In the course of its ministry, plaintiff's Philippine agency has been distributing and selling bibles and/or gospel
portions thereof (except during the Japanese occupation) throughout the Philippines and translating the same 4th quarter 1946 3,256.04
into several Philippine dialects. On May 29 1953, the acting City Treasurer of the City of Manila informed plaintiff
that it was conducting the business of general merchandise since November, 1945, without providing itself with 1st quarter 1947 13,241.07
the necessary Mayor's permit and municipal license, in violation of Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364, and required plaintiff to secure, within three days, the corresponding 2nd quarter 1947 15,774.55
permit and license fees, together with compromise covering the period from the 4th quarter of 1945 to the 2nd
quarter of 1953, in the total sum of P5,821.45 (Annex A). 3rd quarter 1947 14,654.13

Plaintiff protested against this requirement, but the City Treasurer demanded that plaintiff deposit and pay under 4th quarter 1947 12,590.94
protest the sum of P5,891.45, if suit was to be taken in court regarding the same (Annex B). To avoid the closing
of its business as well as further fines and penalties in the premises on October 24, 1953, plaintiff paid to the 1st quarter 1948 11,143.90
defendant under protest the said permit and license fees in the aforementioned amount, giving at the same time
notice to the City Treasurer that suit would be taken in court to question the legality of the ordinances under 2nd quarter 1948 14,715.26
which, the said fees were being collected (Annex C), which was done on the same date by filing the complaint
that gave rise to this action. In its complaint plaintiff prays that judgment be rendered declaring the said Municipal 3rd quarter 1948 38,333.83
Ordinance No. 3000, as amended, and Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and
that the defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid under protest, together with 4th quarter 1948 16,179.90
legal interest thereon, and the costs, plaintiff further praying for such other relief and remedy as the court may
deem just equitable. 1st quarter 1949 23,975.10

Defendant answered the complaint, maintaining in turn that said ordinances were enacted by the Municipal 2nd quarter 1949 17,802.08
Board of the City of Manila by virtue of the power granted to it by section 2444, subsection (m-2) of the Revised
Administrative Code, superseded on June 18, 1949, by section 18, subsection (1) of Republic Act No. 409, 3rd quarter 1949 16,640.79
known as the Revised Charter of the City of Manila, and praying that the complaint be dismissed, with costs
against plaintiff. This answer was replied by the plaintiff reiterating the unconstitutionality of the often-repeated 4th quarter 1949 15,961.38
ordinances.
1st quarter 1950 18,562.46
Before trial the parties submitted the following stipulation of facts: 2nd quarter 1950 21,816.32

COME NOW the parties in the above-entitled case, thru their undersigned attorneys and respectfully 3rd quarter 1950 25,004.55
submit the following stipulation of facts:
4th quarter 1950 45,287.92
1. That the plaintiff sold for the use of the purchasers at its principal office at 636 Isaac Peral, Manila,
Bibles, New Testaments, bible portions and bible concordance in English and other foreign languages 1st quarter 1951 37,841.21
imported by it from the United States as well as Bibles, New Testaments and bible portions in the local
dialects imported and/or purchased locally; that from the fourth quarter of 1945 to the first quarter of 2nd quarter 1951 29,103.98
1953 inclusive the sales made by the plaintiff were as follows:
3rd quarter 1951 20,181.10

Quarter Amount of Sales 4th quarter 1951 22,968.91

4th quarter 1945 P1,244.21 1st quarter 1952 23,002.65

1st quarter 1946 2,206.85 2nd quarter 1952 17,626.96


3rd quarter 1952 17,921.01
4th quarter 1952 24,180.72
1st quarter 1953 29,516.21
2. That the parties hereby reserve the right to present evidence of other facts not herein stipulated.
WHEREFORE, it is respectfully prayed that this case be set for hearing so that the parties may present
further evidence on their behalf. (Record on Appeal, pp. 15-16).
When the case was set for hearing, plaintiff proved, among other things, that it has been in existence in the
Philippines since 1899, and that its parent society is in New York, United States of America; that its, contiguous
real properties located at Isaac Peral are exempt from real estate taxes; and that it was never required to pay
any municipal license fee or tax before the war, nor does the American Bible Society in the United States pay
any license fee or sales tax for the sale of bible therein. Plaintiff further tried to establish that it never made any
profit from the sale of its bibles, which are disposed of for as low as one third of the cost, and that in order to
maintain its operating cost it obtains substantial remittances from its New York office and voluntary contributions
and gifts from certain churches, both in the United States and in the Philippines, which are interested in its
missionary work. Regarding plaintiff's contention of lack of profit in the sale of bibles, defendant retorts that the
admissions of plaintiff-appellant's lone witness who testified on cross-examination that bibles bearing the price of
70 cents each from plaintiff-appellant's New York office are sold here by plaintiff-appellant at P1.30 each; those
bearing the price of $4.50 each are sold here at P10 each; those bearing the price of $7 each are sold here at
P15 each; and those bearing the price of $11 each are sold here at P22 each, clearly show that plaintiff's
contention that it never makes any profit from the sale of its bible, is evidently untenable.
After hearing the Court rendered judgment, the last part of which is as follows:
As may be seen from the repealed section (m-2) of the Revised Administrative Code and the repealing
portions (o) of section 18 of Republic Act No. 409, although they seemingly differ in the way the
legislative intent is expressed, yet their meaning is practically the same for the purpose of taxing the
merchandise mentioned in said legal provisions, and that the taxes to be levied by said ordinances is in
the nature of percentage graduated taxes (Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1,
Group 2, of Ordinance No. 2529, as amended by Ordinance No. 3364).
IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the opinion and so holds that this
case should be dismissed, as it is hereby dismissed, for lack of merits, with costs against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the Court of Appeals which certified the case to Us for
the reason that the errors assigned to the lower Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended, are not unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised Administrative Code under which
Ordinances Nos. 2592 and 3000 were promulgated, was not repealed by Section 18 of Republic Act
No. 409;
3. In not holding that an ordinance providing for taxes based on gross sales or receipts, in order to be
valid under the new Charter of the City of Manila, must first be approved by the President of the
Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have assumed commercial proportions, it
cannot escape from the operation of said municipal ordinances under the cloak of religious privilege.
The issues. — As may be seen from the proceeding statement of the case, the issues involved in the present
controversy may be reduced to the following: (1) whether or not the ordinances of the City of Manila, Nos. 3000,
as amended, and 2529, 3028 and 3364, are constitutional and valid; and (2) whether the provisions of said
ordinances are applicable or not to the case at bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of the Philippines, provides that:
(7) No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religion test shall be required for the exercise of civil or
political rights.
Predicated on this constitutional mandate, plaintiff-appellant contends that Ordinances Nos. 2529 and 3000, as
respectively amended, are unconstitutional and illegal in so far as its society is concerned, because they provide
for religious censorship and restrain the free exercise and enjoyment of its religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We shall first consider the provisions of
the questioned ordinances in relation to their application to the sale of bibles, etc. by appellant. The records,
show that by letter of May 29, 1953 (Annex A), the City Treasurer required plaintiff to secure a Mayor's permit in
connection with the society's alleged business of distributing and selling bibles, etc. and to pay permit dues in the
sum of P35 for the period covered in this litigation, plus the sum of P35 for compromise on account of plaintiff's
failure to secure the permit required by Ordinance No. 3000 of the City of Manila, as amended. This Ordinance is
of general application and not particularly directed against institutions like the plaintiff, and it does not contain any
provisions whatever prescribing religious censorship nor restraining the free exercise and enjoyment of any
religious profession. Section 1 of Ordinance No. 3000 reads as follows:
SEC. 1. PERMITS NECESSARY. — It shall be unlawful for any person or entity to conduct or engage in
any of the businesses, trades, or occupations enumerated in Section 3 of this Ordinance or other
businesses, trades, or occupations for which a permit is required for the proper supervision and
enforcement of existing laws and ordinances governing the sanitation, security, and welfare of the
public and the health of the employees engaged in the business specified in said section 3
hereof, WITHOUT FIRST HAVING OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE
NECESSARY LICENSE FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this case is not particularly mentioned in Section 3 of
the Ordinance, and the record does not show that a permit is required therefor under existing laws and
ordinances for the proper supervision and enforcement of their provisions governing the sanitation, security and
welfare of the public and the health of the employees engaged in the business of the plaintiff. However, sections
3 of Ordinance 3000 contains item No. 79, which reads as follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the power of the City to license or tax said
business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the society to pay from the 4th quarter of
1945 to the 1st quarter of 1953 in the sum of P5,821.45, including the sum of P50 as compromise, Ordinance
No. 2529, as amended by Ordinances Nos. 2779, 2821 and 3028 prescribes the following:
SEC. 1. FEES. — Subject to the provisions of section 578 of the Revised Ordinances of the City of
Manila, as amended, there shall be paid to the City Treasurer for engaging in any of the businesses or
occupations below enumerated, quarterly, license fees based on gross sales or receipts realized during
the preceding quarter in accordance with the rates herein prescribed: PROVIDED, HOWEVER, That a
person engaged in any businesses or occupation for the first time shall pay the initial license fee based
on the probable gross sales or receipts for the first quarter beginning from the date of the opening of the
business as indicated herein for the corresponding business or occupation.
xxx xxx xxx
GROUP 2. — Retail dealers in new (not yet used) merchandise, which dealers are not yet subject to the
payment of any municipal tax, such as (1) retail dealers in general merchandise; (2) retail dealers
exclusively engaged in the sale of . . . books, including stationery.
xxx xxx xxx
As may be seen, the license fees required to be paid quarterly in Section 1 of said Ordinance No. 2529, as
amended, are not imposed directly upon any religious institution but upon those engaged in any of the business
or occupations therein enumerated, such as retail "dealers in general merchandise" which, it is alleged, cover the
business or occupation of selling bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444, subsection (m-2) of said legal body,
as amended by Act No. 3659, approved on December 8, 1929, empowers the Municipal Board of the City of
Manila:
(M-2) To tax and fix the license fee on (a) dealers in new automobiles or accessories or both, and (b)
retail dealers in new (not yet used) merchandise, which dealers are not yet subject to the payment of
any municipal tax.
For the purpose of taxation, these retail dealers shall be classified as (1) retail dealers in general
merchandise, and (2) retail dealers exclusively engaged in the sale of (a) textiles . . . (e) books,
including stationery, paper and office supplies, . . .: PROVIDED, HOWEVER, That the combined total
tax of any debtor or manufacturer, or both, enumerated under these subsections (m-1) and (m-2),
whether dealing in one or all of the articles mentioned herein, SHALL NOT BE IN EXCESS OF FIVE
HUNDRED PESOS PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000, as amended, were enacted in virtue
of the power that said Act No. 3669 conferred upon the City of Manila. Appellant, however, contends that said
ordinances are longer in force and effect as the law under which they were promulgated has been expressly
repealed by Section 102 of Republic Act No. 409 passed on June 18, 1949, known as the Revised Manila
Charter.
Passing upon this point the lower Court categorically stated that Republic Act No. 409 expressly repealed the
provisions of Chapter 60 of the Revised Administrative Code but in the opinion of the trial Judge, although
Section 2444 (m-2) of the former Manila Charter and section 18 (o) of the new seemingly differ in the way the
legislative intent was expressed, yet their meaning is practically the same for the purpose of taxing the
merchandise mentioned in both legal provisions and, consequently, Ordinances Nos. 2529 and 3000, as
amended, are to be considered as still in full force and effect uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing statute, will repeal the old statute in its
entirety and by the same enactment re-enact all or certain portions of the preexisting law. Of course, the
problem created by this sort of legislative action involves mainly the effect of the repeal upon rights and
liabilities which accrued under the original statute. Are those rights and liabilities destroyed or
preserved? The authorities are divided as to the effect of simultaneous repeals and re-enactments.
Some adhere to the view that the rights and liabilities accrued under the repealed act are destroyed,
since the statutes from which they sprang are actually terminated, even though for only a very short
period of time. Others, and they seem to be in the majority, refuse to accept this view of the situation,
and consequently maintain that all rights an liabilities which have accrued under the original statute are
preserved and may be enforced, since the re-enactment neutralizes the repeal, therefore, continuing
the law in force without interruption. (Crawford-Statutory Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No, 409 introduces a new and wider concept of
taxation and is different from the provisions of Section 2444(m-2) that the former cannot be considered as a
substantial re-enactment of the provisions of the latter. We have quoted above the provisions of section 2444(m-
2) of the Revised Administrative Code and We shall now copy hereunder the provisions of Section 18,
subdivision (o) of Republic Act No. 409, which reads as follows:
(o) To tax and fix the license fee on dealers in general merchandise, including importers and indentors,
except those dealers who may be expressly subject to the payment of some other municipal tax under
the provisions of this section.
Dealers in general merchandise shall be classified as (a) wholesale dealers and (b) retail dealers. For
purposes of the tax on retail dealers, general merchandise shall be classified into four main classes:
namely (1) luxury articles, (2) semi-luxury articles, (3) essential commodities, and (4) miscellaneous
articles. A separate license shall be prescribed for each class but where commodities of different
classes are sold in the same establishment, it shall not be compulsory for the owner to secure more
than one license if he pays the higher or highest rate of tax prescribed by ordinance. Wholesale dealers
shall pay the license tax as such, as may be provided by ordinance.
For purposes of this section, the term "General merchandise" shall include poultry and livestock,
agricultural products, fish and other allied products.
The only essential difference that We find between these two provisions that may have any bearing on the case
at bar, is that, while subsection (m-2) prescribes that the combined total tax of any dealer or manufacturer, or
both, enumerated under subsections (m-1) and (m-2), whether dealing in one or all of the articles mentioned
therein, shall not be in excess of P500 per annum, the corresponding section 18, subsection (o) of Republic Act
No. 409, does not contain any limitation as to the amount of tax or license fee that the retail dealer has to pay per
annum. Hence, and in accordance with the weight of the authorities above referred to that maintain that "all rights
and liabilities which have accrued under the original statute are preserved and may be enforced, since the
reenactment neutralizes the repeal, therefore continuing the law in force without interruption", We hold that the
questioned ordinances of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be valid, must first be approved by the President of
the Philippines as per section 18, subsection (ii) of Republic Act No. 409, which reads as follows:
(ii) To tax, license and regulate any business, trade or occupation being conducted within the City of
Manila, not otherwise enumerated in the preceding subsections, including percentage taxes based on
gross sales or receipts, subject to the approval of the PRESIDENT, except amusement taxes.
but this requirement of the President's approval was not contained in section 2444 of the former Charter of the
City of Manila under which Ordinance No. 2529 was promulgated. Anyway, as stated by appellee's counsel, the
business of "retail dealers in general merchandise" is expressly enumerated in subsection (o), section 18 of
Republic Act No. 409; hence, an ordinance prescribing a municipal tax on said business does not have to be
approved by the President to be effective, as it is not among those referred to in said subsection (ii). Moreover,
the questioned ordinances are still in force, having been promulgated by the Municipal Board of the City of
Manila under the authority granted to it by law.
The question that now remains to be determined is whether said ordinances are inapplicable, invalid or
unconstitutional if applied to the alleged business of distribution and sale of bibles to the people of the Philippines
by a religious corporation like the American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779, 2821 and 3028, appellant contends
that it is unconstitutional and illegal because it restrains the free exercise and enjoyment of the religious
profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines aforequoted, guarantees the freedom of
religious profession and worship. "Religion has been spoken of as a profession of faith to an active power that
binds and elevates man to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has reference to one's views of his
relations to His Creator and to the obligations they impose of reverence to His being and character, and
obedience to His Will (Davis vs. Beason, 133 U.S., 342). The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any
restraints of such right can only be justified like other restraints of freedom of expression on the grounds that
there is a clear and present danger of any substantive evil which the State has the right to prevent". (Tañada and
Fernando on the Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the license fee herein
involved is imposed upon appellant for its distribution and sale of bibles and other religious literature:
In the case of Murdock vs. Pennsylvania, it was held that an ordinance requiring that a license be
obtained before a person could canvass or solicit orders for goods, paintings, pictures, wares or
merchandise cannot be made to apply to members of Jehovah's Witnesses who went about from door
to door distributing literature and soliciting people to "purchase" certain religious books and pamphlets,
all published by the Watch Tower Bible & Tract Society. The "price" of the books was twenty-five cents
each, the "price" of the pamphlets five cents each. It was shown that in making the solicitations there
was a request for additional "contribution" of twenty-five cents each for the books and five cents each
for the pamphlets. Lesser sum were accepted, however, and books were even donated in case
interested persons were without funds.
On the above facts the Supreme Court held that it could not be said that petitioners were engaged in
commercial rather than a religious venture. Their activities could not be described as embraced in the
occupation of selling books and pamphlets. Then the Court continued:
"We do not mean to say that religious groups and the press are free from all financial burdens of
government. See Grosjean vs. American Press Co., 297 U.S., 233, 250, 80 L. ed. 660, 668, 56 S. Ct.
444. We have here something quite different, for example, from a tax on the income of one who
engages in religious activities or a tax on property used or employed in connection with activities. It is
one thing to impose a tax on the income or property of a preacher. It is quite another to exact a tax from
him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license
tax, payment of which is a condition of the exercise of these constitutional privileges. The power to tax
the exercise of a privilege is the power to control or suppress its enjoyment. . . . Those who can tax the
exercise of this religious practice can make its exercise so costly as to deprive it of the resources
necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary
evangelism can close all its doors to all those who do not have a full purse. Spreading religious beliefs
in this ancient and honorable manner would thus be denied the needy. . . .
It is contended however that the fact that the license tax can suppress or control this activity is
unimportant if it does not do so. But that is to disregard the nature of this tax. It is a license tax — a flat
tax imposed on the exercise of a privilege granted by the Bill of Rights . . . The power to impose a
license tax on the exercise of these freedom is indeed as potent as the power of censorship which this
Court has repeatedly struck down. . . . It is not a nominal fee imposed as a regulatory measure to defray
the expenses of policing the activities in question. It is in no way apportioned. It is flat license tax levied
and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the
constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is
almost uniformly recognized as the inherent vice and evil of this flat license tax."
Nor could dissemination of religious information be conditioned upon the approval of an official or
manager even if the town were owned by a corporation as held in the case of Marsh vs. State of
Alabama (326 U.S. 501), or by the United States itself as held in the case of Tucker vs. Texas (326 U.S.
517). In the former case the Supreme Court expressed the opinion that the right to enjoy freedom of the
press and religion occupies a preferred position as against the constitutional right of property owners.
"When we balance the constitutional rights of owners of property against those of the people to enjoy
freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a
preferred position. . . . In our view the circumstance that the property rights to the premises where the
deprivation of property here involved, took place, were held by others than the public, is not sufficient to
justify the State's permitting a corporation to govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint by the application of a State statute."
(Tañada and Fernando on the Constitution of the Philippines, Vol. 1, 4th ed., p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National Internal Revenue Code, provides:
 SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. — The following organizations shall not be G.R. No. 74930 February 13, 1989
taxed under this Title in respect to income received by them as such —
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
(e) Corporations or associations organized and operated exclusively for religious, charitable, . . . or
BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY"
educational purposes, . . .: Provided, however, That the income of whatever kind and character from
any of its properties, real or personal, or from any activity conducted for profit, regardless of the ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners,
disposition made of such income, shall be liable to the tax imposed under this Code; vs.
FELICIANO BELMONTE, JR., respondent.
Appellant's counsel claims that the Collector of Internal Revenue has exempted the plaintiff from this tax and
says that such exemption clearly indicates that the act of distributing and selling bibles, etc. is purely religious Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
and does not fall under the above legal provisions.
The Solicitor General for respondent.
It may be true that in the case at bar the price asked for the bibles and other religious pamphlets was in some
instances a little bit higher than the actual cost of the same but this cannot mean that appellant was engaged in
the business or occupation of selling said "merchandise" for profit. For this reason We believe that the provisions
of City of Manila Ordinance No. 2529, as amended, cannot be applied to appellant, for in doing so it would impair
its free exercise and enjoyment of its religious profession and worship as well as its rights of dissemination of CORTES, J.:
religious beliefs.

With respect to Ordinance No. 3000, as amended, which requires the obtention the Mayor's permit before any
Petitioners in this special civil action for mandamus with preliminary injunction invoke their right
person can engage in any of the businesses, trades or occupations enumerated therein, We do not find that it to information and pray that respondent be directed:
imposes any charge upon the enjoyment of a right granted by the Constitution, nor tax the exercise of religious
practices. In the case of Coleman vs. City of Griffin, 189 S.E. 427, this point was elucidated as follows:

An ordinance by the City of Griffin, declaring that the practice of distributing either by hand or otherwise, (a) to furnish petitioners the list of the names of the Batasang
circulars, handbooks, advertising, or literature of any kind, whether said articles are being delivered
free, or whether same are being sold within the city limits of the City of Griffin, without first obtaining
Pambansa members belonging to the UNIDO and PDP-Laban
written permission from the city manager of the City of Griffin, shall be deemed a nuisance and who were able to secure clean loans immediately before the
punishable as an offense against the City of Griffin, does not deprive defendant of his constitutional February 7 election thru the intercession/marginal note of the
right of the free exercise and enjoyment of religious profession and worship, even though it prohibits then First Lady Imelda Marcos; and/or
him from introducing and carrying out a scheme or purpose which he sees fit to claim as a part of his
religious system.
(b) to furnish petitioners with certified true copies of the
documents evidencing their respective loans; and/or
It seems clear, therefore, that Ordinance No. 3000 cannot be considered unconstitutional, even if applied to
plaintiff Society. But as Ordinance No. 2529 of the City of Manila, as amended, is not applicable to plaintiff-
appellant and defendant-appellee is powerless to license or tax the business of plaintiff Society involved herein (c) to allow petitioners access to the public records for the subject
for, as stated before, it would impair plaintiff's right to the free exercise and enjoyment of its religious profession information. (Petition, pp. 4-5; paragraphing supplied.]
and worship, as well as its rights of dissemination of religious beliefs, We find that Ordinance No. 3000, as
amended is also inapplicable to said business, trade or occupation of the plaintiff.
The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:
Wherefore, and on the strength of the foregoing considerations, We hereby reverse the decision appealed from,
sentencing defendant return to plaintiff the sum of P5,891.45 unduly collected from it. Without pronouncement as June 4, 1986
to costs. It is so ordered.
Hon. Feliciano Belmonte
Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur. GSIS General Manager
Arroceros, Manila

Sir:
 As a lawyer, member of the media and plain citizen of our Republic, I am
requesting that I be furnished with the list of names of the opposition members of
(the) Batasang Pambansa who were able to secure a clean loan of P2 million
each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel
Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished
with the certified true copies of the documents evidencing their loan. Expenses in
connection herewith shall be borne by us.
If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the Freedom
Constitution of the present regime.
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions or
decisions, shall be afforded the citizen subject to such limitation
as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your
favorable response on the matter.
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compañero:
Possibly because he must have thought that it contained serious legal
implications, President & General Manager Feliciano Belmonte, Jr. referred to
me for study and reply your letter to him of June 4, 1986 requesting a list of the
opposition members of Batasang Pambansa who were able to secure a clean
loan of P2 million each on guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the
GSIS and all those who borrow from it, whoever they may be; that the GSIS has
a duty to its customers to preserve this confidentiality; and that it would not be
proper for the GSIS to breach this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS as a
reputable financial institution, I regret very much that at this time we cannot
respond positively to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the Government Service and
Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent
another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free
to do whatever action necessary within the premises to pursue our desired objective in
pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of
the defunct interim and regular Batasang Pambansa, including ten (10) opposition members,
were granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the petition was given due course and the parties were
required to file their memoranda. The parties having complied, the case was deemed submitted
for decision.
In his comment respondent raises procedural objections to the issuance of a writ of mandamus,
among which is that petitioners have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are reviewable by the Board of
Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees.
It is therefore asserted that since administrative remedies were not exhausted, then petitioners
have no cause of action.
To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not
they are entitled to the documents sought, by virtue of their constitutional right to information.
Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion
of administrative remedies.
Among the settled principles in administrative law is that before a party can be allowed to resort
to the courts, he is expected to have exhausted all means of administrative redress available
under the law. The courts for reasons of law, comity and convenience will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of administrative remedies is subject
to settled exceptions, among which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30,
1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.]
The issue raised by petitioners, which requires the interpretation of the scope of the
constitutional right to information, is one which can be passed upon by the regular courts more
competently than the GSIS or its Board of Trustees, involving as it does a purely legal question.
Thus, the exception of this case from the application of the general rule on exhaustion of
administrative remedies is warranted. Having disposed of this procedural issue, We now address
ourselves to the issue of whether or not mandamus hes to compel respondent to perform the
acts sought by petitioners to be done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be done, both of which
involve the issue of whether or not petitioners are entitled to access to the documents evidencing
loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy directly involving the
constitutional right to information. In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136
SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May
29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of
matters of public interest and ordered the government agencies concerned to act as prayed for
by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of
which provided:
The right of the people to information on 'matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining
to official acts, transactions, or decisions, shall be afforded the citizen subject to
such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral and artistic thought
and data relative to them, and the free exchange of ideas and discussion of issues thereon, is
vital to the democratic government envisioned under our Constitution. The cornerstone of this
republican system of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of the authority
conferred by the people. Denied access to information on the inner workings of government, the
citizenry can become prey to the whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in
Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be were
empty words if access to such information of public concern is denied, except under limitations
prescribed by implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to gather and the
obligation to check the accuracy of information the disseminate. For them, the freedom of the
press and of speech is not only critical, but vital to the exercise of their professions. The right of
access to information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an essential element of these freedoms is
to keep open a continuing dialogue or process of communication between the government and
the people. It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the people's will.
Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the participants in the discussion are aware of
the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and expression.
But this is not to say that the right to information is merely an adjunct of and therefore restricted
in application by the exercise of the freedoms of speech and of the press. Far from it. The right to
information goes hand-in-hand with the constitutional policies of full public disclosure * and honesty in
the public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated
in Legaspi, the people's right to information is limited to "matters of public concern," and is
further "subject to such limitations as may be provided by law." Similarly, the State's policy of full
disclosure is limited to "transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information sought is of "public
interest" or "public concern," and is not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public interest" and "public
concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citezen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional right to information
was the need for adequate notice to the public of the various laws which are to regulate the
actions and conduct of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure
that government positions requiring civil service eligibility are occupied only by persons who are
eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that certain Members of
the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the
GSIS immediately before the February 7, 1986 election through the intercession of th eformer
First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the
administrator of various insurance programs for the benefit of the latter. Undeniably, its funds
assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the
Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay
the contributions, premiums, interest and other amounts payable to GSIS by the government, as
employer, as well as the obligations which the Republic of the Philippines assumes or
guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No.
186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds
administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It
is therefore the legitimate concern of the public to ensure that these funds are managed properly
with the end in view of maximizing the benefits that accrue to the insured government
employees. Moreover, the supposed borrowers were Members of the defunct Batasang
Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be
the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that
an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the
alleged borrowers make the information sought clearly a matter of public interest and concern.
A second requisite must be met before the right to information may be enforced through
mandamus proceedings, viz., that the information sought must not be among those excluded by
law.
Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of
information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as
regards the documents subject of this petition. His position is apparently based merely on
considerations of policy. The judiciary does not settle policy issues. The Court can only declare
what the law is, and not what the law should be. Under our system of government, policy issues
are within the domain of the political branches of the government, and of the people themselves
as the repository of all State power.
Respondent however contends that in view of the right to privacy which is equally protected by
the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS
must be deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the landmark case
of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr.
Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed one of the
basic distinctions between absolute and limited government. UItimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute. state, In contrast, a system of limited government safeguards a private
sector, which belongs to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this private sector — protection,
in other words, of the dignity and integrity of the individual — has become
increasingly important as modem society has developed. All the forces of
technological age — industrialization, urbanization, and organization — operate
to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
 capacity to maintain and support this enclave of private life marks the difference that the government, whether carrying out its sovereign attributes or running some business,
between a democratic and a totalitarian society." [at pp. 444-445.] discharges the same function of service to the people.

When the information requested from the government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to privacy may arise. However, the
competing interests of these rights need not be resolved in this case. Apparent from the above-
quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right
cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v.
Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of
its borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121
Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31
L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to
be violated.
It may be observed, however, that in the instant case, the concerned borrowers themselves may
not succeed if they choose to invoke their right to privacy, considering the public offices they
were holding at the time the loans were alleged to have been granted. It cannot be denied that
because of the interest they generate and their newsworthiness, public figures, most especially
those holding responsible positions in government, enjoy a more limited right to privacy as
compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf.Ayer
Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen
v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan transactions of the GSIS
are private in nature and hence, are not covered by the Constitutional right to information on
matters of public concern which guarantees "(a)ccess to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions" only.
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would
not justify the exclusion of the transactions from the coverage and scope of the right to
information.
Moreover, the intent of the members of the Constitutional Commission of 1986, to include
government-owned and controlled corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from the records of the
proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its
transactions" — referring to the transactions of the State — and
when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of
the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

It is argued that the records of the GSIS, a government corporation performing proprietary MR. SUAREZ. Including government-owned and controlled corporations.
functions, are outside the coverage of the people's right of access to official records.
MR. OPLE. That is correct, Mr. Presiding Officer.
It is further contended that since the loan function of the GSIS is merely incidental to its
insurance function, then its loan transactions are not covered by the constitutional policy of full MR. SUAREZ. And when we say "transactions"
public disclosure and the right to information which is applicable only to "official" transactions. which should be distinguished from contracts,
agreements, or treaties or whatever, does the
First of all, the "constituent — ministrant" dichotomy characterizing government function has long Gentleman refer to the steps leading to the
been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and consummation of the contract, or does he refer to
Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said the contract itself?
 MR. OPLE. The "transactions" used here I
suppose is generic and, therefore, it can cover
both steps leading to a contract, and already a
consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of
negotiations leading to the consummation of the
transaction.
MR. OPLE. Yes, subject only to reasonable
safeguards on the national interest.
MR. SUAREZ. Thank you. [V Record of the
Constitutional Commission 24-25.] (Emphasis
supplied.)
Considering the intent of the framers of the Constitution which, though not binding upon the
Court, are nevertheless persuasive, and considering further that government-owned and
controlled corporations, whether performing proprietary or governmental functions are
accountable to the people, the Court is convinced that transactions entered into by the GSIS, a
government-controlled corporation created by special legislation are within the ambit of the
people's right to be informed pursuant to the constitutional policy of transparency in government
dealings.
In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of the records may be avoided, that
undue interference with the duties of the custodian of the records may be prevented and that the
right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to
the second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to
furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel custodians
of official records to prepare lists, abstracts, summaries and the like in their desire to acquire
information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a
well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty
of defendant to perform the act required. The corresponding duty of the respondent to perform
the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.]
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents
and records evidencing loans granted to Members of the former Batasang Pambansa, as
petitioners may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla,
Bidin, Sarmiento, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this separate opinion
simply to say I have nothing to add to Justice Irene R. Cortes' exceptionally eloquent celebration
of the right to information on matters of public concern.
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to signify my concurrence, I write this separate opinion
simply to say I have nothing to add to Justice Irene R. Cortes' exceptionally eloquent celebration
of the right to information on matters of public concern.
G.R. No. L-4254 September 26, 1951
BORIS MEJOFF, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for
respondents.
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a
decision of this Court of July 30, 1949. The history of the petitioner's detention was thus briefly
set forth in that decision, written by Mr. Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this
country from Shanghai as a secret operative by the Japanese forces during the latter's
regime in these Islands. Upon liberation he was arrested as a Japanese spy, by U.S.
Army Counter Intelligence Corps. Later he was handed to theCommonwealth
Government for disposition in accordance with Commonwealth Act No. 682. Thereafter,
the People's Court ordered his release. But the deportation Board taking his case up,
found that having no travel documents Mejoff was illegally in this country, and
consequently referred the matter to the immigration authorities. After the corresponding
investigation, the Board of commissioners of Immigration on April 5, 1948, declared that
Mejoff had entered the Philippines illegally in 1944, without inspection and admission by
the immigration officials at a designation port of entry and, therefore, it ordered that he be
deported on the first available transportation to Russia. The petitioner was then under
custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to
the Cebu Provincial Jail together with three other Russians to await the arrival of some
Russian vessels. In July and August of that year two boats of Russian nationality called
at the Cebu Port. But their masters refused to take petitioner and his companions
alleging lack of authority to do so. In October 1948 after repeated failures to ship this
deportee abroad, the authorities removed him to Bilibid Prison at Muntinglupa where he
has been confined up to the present time, inasmuch as the Commissioner of Immigration
believes it is for the best interests of the country to keep him under detention while
arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention is a
necessary step in the process of exclusion or expulsion of undesirable aliens and that pending
arrangements for his deportation, the Government has the right to hold the undesirable alien
under confinement for a reasonable lenght of time." It took note of the fact, manifested by the
Solicitor General's representative in the course of the of the oral argumment, that "this
Government desires to expel the alien, and does not relish keeping him at the people's expense
. . . making efforts to carry out the decree of exclusion by the highest officer of the land." No
period was fixed within which the immigration authorities should carry out the contemplated
deportation beyond the statement that "The meaning of 'reasonable time' depends upon the
circumstances, specially the difficulties of obtaining a passport, the availability of transportation,
the diplomatic arrangements with the governments concerned and the efforts displayed to send
the deportee away;" but the Court warned that "under established precedents, too long a
detention may justify the issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of
this decision dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of
the prisoner from custody. Mr. Justice Paras qualified his dissent by stating that he might agree
"to further detention of the herein petitioner, provided that he be released if after six months, the
Government is still unable to deport him." This writer joined in the latter dissent but thought that
two months constituted reasonable time.
Over two years having elapsed since the decision aforesaid was promulgated, the Government
has not found way and means of removing the petitioner out of the country, and none are in
sight, although it should be said in justice to the deportation authorities, it was through no fault of
theirs that no ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon,
Sept. 18, 1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to
be. It is no less true however, as impliedly stated in this Court's decision, supra, that foreign
nationals, not enemy against whom no charge has been made other than that their permission to
stay has expired, may not indefinitely be kept in detention. The protection against deprivation of
liberty without due process of law and except for crimes committed against the laws of the land is
not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of
nationality. Whether an alien who entered the country in violation of its immigration laws may be
detained for as long as the Government is unable to deport him, is a point we need not decide.
The petitioner's entry into the Philippines was not unlawful; he was brought by the armed and
belligerent forces of a de facto government whose decrees were law furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted
principles of international law as part of the law of Nation." And in a resolution entitled "Universal
Declaration of Human Rights" and approved by the General Assembly of the United Nations of
which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life
and liberty and all other fundamental rights as applied to all human beings were proclaimed. It
was there resolved that "All human beings are born free and equal in degree and rights" (Art. 1);
that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
nationality or social origin, property, birth, or other status" (Art. 2): that "Every one has the right to
an effective remedy by the competent national tribunals for acts violating the fundamental rights
granted him by the Constitution or by law" (Art. 8); that "No one shall be subjected to arbitrary
arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from
custody an alien who has been detained an unreasonably long period of time by the Department
of Justice after it has become apparent that although a warrant for his deportation has been
issued, the warrant can not be effectuated;" that "the theory on which the court is given the
power to act is that the warrant of deportation, not having been able to be executed, is functus
officio and the alien is being held without any authority of law." The decision cited several cases
which, it said, settled the matter definitely in that jurisdiction, adding that the same result had
reached in innumerable cases elsewhere. The cases referred to were United States ex rel.
Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955;
Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews, D.C.W.D.
Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins
(1948), 90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a
stateless person, formerly a Polish national, resident in the United States since 1911 and many
times serving as a seaman on American vessels both in peace and in war, was ordered
excluded from the United States and detained at Ellis Island at the expense of the steamship
company, when he returned from a voyage on which he had shipped from New York for one or
more European ports and return to the United States. The grounds for his exclusion were that he
had no passport or immigration visa, and that in 1937 had been convicted of perjury because in
certain documents he presented himself to be an American citizen. Upon his application for
release on habeas corpus, the Court released him upon his own recognizance. Judge Leibell, of
the United States District Court for the Southern District of New York, said in part:
When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some
country that he would receive him as a resident. He is, a native-born Pole but the Polish
Consul has advised him in writing that he is no longer a Polish subject. This Government
does not claim that he is a Polish citizen. His attorney says he is a stateless. The
Government is willing that he go back to the ship, but if he were sent back aboard a ship
and sailed to the Port (Cherbourg, France) from which he last sailed to the United States,
he would probably be denied permission to land. There is no other country that would
take him, without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be
released from custody on proper terms. . . .
What is to be done with the petitioner? The government has had him in custody almost
seven months and practically admits it has no place to send him out of this country. The
steamship company, which employed him as one of a group sent to the ship by the
Union, with proper seaman's papers issued by the United States Coast Guard, is paying
$3 a day for petitioner's board at Ellis Island. It is no fault of the steamship company that
petitioner is an inadmissible alien as the immigration officials describe him. . . .
I intend to sustain the writ of habeas corpus and order the release of the petitioner on his
own recognizance. He will be required to inform the immigration officials at Ellis Island by
mail on the 15th of each month, stating where he is employed and where he can be
reached by mail. If the government does succeed in arranging for petitioner's deportation
to a country that will be ready to receive him as a resident, it may then advise the
petitioner to that effect and arrange for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy
solution to the quandry in which the parties here finds themselves, solution which we think is
sensible, sound and compatible with law and the Constitution. For this reason, and since the
Philippine law on immigration was patterned after or copied from the American law and practice,
we choose to follow and adopt the reasoning and conclusions in the Staniszewski decision with
some modifications which, it is believed, are in consonance with the prevailing conditions of
peace and order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid
the disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its
answer that "the herein petitioner was brought to the Philippines by the Japanese forces," and
the fact that Japan is no longer at war with the United States or the Philippines nor identified with
the countries allied against these nations, the possibility of the petitioner's entertaining or
committing hostile acts prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly
prolonged detention would be unwarranted by law and the Constitution, if the only purpose of the
detention be to eliminate a danger that is by no means actual, present, or uncontrolable. After
all, the Government is not impotent to deal with or prevent any threat by such measure as that
just outlined. The thought eloquently expressed by Mr. Justice Jackson of the United States
Supreme Court in connection with the appliccation for bail of ten Communists convicted by a
lower court of advocacy of violent overthrow of the United States Government is, in principle,
pertinent and may be availed of at this juncture. Said the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after
conviction, have forfeited their claim to bail. Grave public danger is said to result from
what they may be expected to do, in addition to what they have done since their
conviction. If I assume that defendants are disposed to commit every opportune disloyal
to act helpful to Communist countries, it is still difficult to reconcile with traditional
American law the jailing of persons by the courts because of anticipated but as yet
uncommitted crimes. lmprisonment to protect society from predicted but unconsummated
 offenses is so unprecedented in this country and so fraught with danger of excesses and
injustice that I am loath to resort it, even as a discretionary judicial technique to
supplement conviction of such offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the
same constitutional bundle with those of these Communists. If an anger or disgust with
these defendants we throw out the bundle, we alsocast aside protection for the liberties
of more worthy critics who may be in opposition to the government of some future day.
xxx xxx xxx 1âw phïl.nêt
If, however, I were to be wrong on all of these abstract or theoretical matters of principle,
there is a very practical aspect of this application which must not be overlooked or
underestimated — that is the disastrous effect on the reputation of American justice if I
should now send these men to jail and the full Court later decide that their conviction is
invalid. All experience with litigation teaches that existence of a substantial question
about a conviction implies a more than negligible risk of reversal. Indeed this experience
lies back of our rule permitting and practice of allowing bail where such questions exist,
to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our
system of justice. If that is prudent judicial practice in the ordinary case, how much more
important to avoid every chance of handing to the Communist world such an ideological
weapon as it would have if this country should imprison this handful of Communist
leaders on a conviction that our highest Court would confess to be illegal. Risks, of
course, are involved in either granting or refusing bail. I am naive enough to
underestimate the troublemaking propensities of the defendants. But, with the
Department of Justice alert to the the dangers, the worst they can accomplish in the
short time it will take to end the litigation is preferable to the possibility of national
embarrassment from a celebrated case of unjustified imprisonment of Communist
leaders. Under no circumstances must we permit their symbolization of an evil force in
the world to be hallowed and glorified by any semblance of martyrdom. The way to avoid
that risk is not to jail these men until it is finally decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its underlying principle is of
universal application. In fact, its ratio decidendi applies with greater force to the present petition,
since the right of accused to bail pending apppeal of his case, as in the case of the ten
Communists, depends upon the discretion of the court, whereas the right to be enlarged before
formal charges are instituted is absolute. As already noted, not only are there no charges
pending against the petitioner, but the prospects of bringing any against him are slim and
remote.
Premises considered, the writ will issue commanding the respondents to release the petitioner
from custody upon these terms: The petitioner shall be placed under the surveillance of the
immigration authorities or their agents in such form and manner as may be deemed adequate to
insure that he keep peace and be available when the Government is ready to deport him. The
surveillance shall be reasonable and the question of reasonableness shall be submitted to this
Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put
up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which
bond the Commissioner of Immigration is authorized to exact by section 40 of Commonwealth
Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.
Separate Opinions
PABLO, M., disidente:
Disiento
En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el
solicitante Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia
venido a Filipinas procedente de Shanghai como espia japones; en la liberacion, el ejercito
americano le arresto por se espia, habiendo sido mas tarde entregado al Gobierno del
Commonwealth para ser tratado de acuerdo con la ley No.682; pero como bajo el Codgo Penal
Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga
al extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida
investigacion, la Junta de Departacion encontra que el solicitante no tenia permiso para entrar
en Filipinas; fue entregado a la Junta de Inmigacion, la cual ordeno su deportacion a Rusia por
el primer transporte disponible por haber vendo aqui ilegalmente; fue enviado a Cebu para que
alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron a dicho puerto en julio
y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion para su departacion,
Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de tenido mientras el
Gobierno no encuenra medio de transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was
brought by the armed and belligerent forces of a de facto government whose decrees were law
during the occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio
como espia. Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito
invasor que le trajo, el solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si
desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya
esta aqui no le da titulo para permanecer libre aqui. El que ha venido como espia de enemigo
del Pueblo de Filipinas no tiene derecho a pedir igual trato que aquel ha entrado de buena fe.
¿Es que Filipinos tiene la obligacion de acoger a un ciudadano indeseable de Rusia? ¿Desde
cuando tiene que allanarse una nacion a ser residencia de una extranjero que entro como
enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a deportar y expulsar
de su territorio a todo extranjero indeseable.
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a
permanecer aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos
que, por alguno que otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui
reclamando igual derecho, no habria territorio suficiente para ellos. Se puede decir otro tanto de
los chinos que, so pretexto de no querer someterse al regimen comunista, optasen por resider
para siempre aqui. Y si los mismos communistas chinos viniesen clandestinamente y despues
reclamasen igual proteccion como la concedida a Mejoff, ¿tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada
"Universal Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one
shall be subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en
lo sagrado de esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin
motivo justificado, de una manera arbitraria; pero el solicitante no esta detenido de esta manera,
lo esta de una manera provisional. Tan pronto como haya barco disponible para su deportacion
o tan pronto como pueda embarcarse en algun barco para el extenjero o para cualquier otro
punto a donde quiera ir, dejara de ser detenido. Conste que no esta preso como un criminal
condenado por un delito; esta tratado como cualquier otro extranjero sujeto a deportacion. Si el
solicitante no hubiera sido espia, si no hubiera venido aqui para ayudar a las hordas japonesas
en la subyugacion del pueblo filipino, si hubiera venido como visitante, por ejemplo, y, por
azares de la fortuna, no pudo salir, yo seria el primero en abogar por su liberacion inmediata.
Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of
International Law, 732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se
decreto su libertad en un recurso de habeas corpus. En nuestra opinion, dicho caso no tiene
simulitud con la causa presente. Staniszewski era residente de los Estados desde 1911; estuvo
sirviendo como marino en barcos mercantes americanos en tiempo de guerra y se ordeno su
detencion en Ellis Island cuando volvio a America procedente de un viaje a Europa por no tener
papeles de inmigracion. Staniszewski no habia entrado en los Estados Unidos como espia,
estuvo residiendo en dicho pais por varios años, era ya habitante de los Estados unidos. La
ocupacion de marino es honrosa, la del espia mercenario, detestable. El espia es peor que el
enemigo. Este lucha cara a cara, y el espia, con disimulo y arte engañosa, escucha lo que a
Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es poner en peligro la
seguridad del Estado.
En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de
la cincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre
Filipinas y Rusia o Shanghai, debico a fala de relciones diplomaticas, son completamente
anormales. No es culpa del gobierno el que no encuentre medios de transportacion para el.
La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of
the United Nations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o
enviado a otro pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en
condicines para aceptar dicha recomendacion.
William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su
deportacion por el Sub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su
libertad bajo el recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion;
no se le pudo deportar porque "the necessary arrangements for his deportation could obviously
not be made." (District Court of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion
provisional de William Martin Jurgans duro mas de seis años; la de Mejoff no ha sido mas que
de 31 meses, y no porque el gobierno no quiere deportarle, sino porque no hay medio
disponible para realizarlo.
En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:
What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular cases. This court
cannot shut its eyes to the vitally important interests of this country at this time with
respect to the bottleneck of shipping, when every available ship, domestic and foreign,
must be utilized to the utmost without delay consequent upon the lack of avilable
seamen. Under these present conditions the court should be liberal indeed in aiding the
executive branch of the govenment in the strict enforcement of laws so vitally necessary
in the common defns. There is sound authority for this view in United States ex. rel.
Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where Circuit Judge Lacombe refused to
release an alien who had come here from Germany and was ordered deported in 1915
when, by reason of the then existing war between Germany and England, his deportation
to Germany was not possible. It was said:
At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to forward him, and are holding him until some opportunity of
returning him to Germany may present itself. His continual detention is unfortunate, but
certainly is not illegal. His present condition can be alleviated only by the action of the
executive branch of the government. A federal court would not be justified in discharging
him. . . .
If he is not really fit for sea service, it is not probable that he would be forced into it,
although he may be able to serve his government in some other capacity. But however
that may be, while this country has no power under existing legislation to impress him
into sea service against his will, he has no just cause to be relieved from the strict
enforcement of our deportation laws, and to remain at liberty in this country as a
sanctuary contrary to our laws.
No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su

deportacion, supon un gasto innecesario.

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