1) G.R. No.
96681 December 2, 1991 Among those who took part in the "concerted mass actions" were the eight (8) private
HON. ISIDRO CARIÑO, in his capacity as Secretary of
the Department of Education, Culture & Sports, DR.
ERLINDA LOLARGA, in her capacity as Superintendent
of City Schools of Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO
BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN
LUPO, AMPARO GONZALES, LUZ DEL CASTILLO,
ELSA REYES and APOLINARIO ESBER, respondents.
NARVASA, J.:
The issue raised in the special civil action of certiorari and
prohibition at bar, instituted by the Solicitor General, may be
formulated as follows: where the relief sought from the
Commission on Human Rights by a party in a case consists
of the review and reversal or modification of a decision or
order issued by a court of justice or government agency or
official exercising quasi-judicial functions, may the
Commission take cognizance of the case and grant that
relief? Stated otherwise, where a particular subject-matter
is placed by law within the jurisdiction of a court or other
government agency or official for purposes of trial and
adjudgment, may the Commission on Human Rights take
cognizance of the same subject-matter for the same
purposes of hearing and adjudication?
The facts narrated in the petition are not denied by the
respondents and are hence taken as substantially correct
for purposes of ruling on the legal questions posed in the
present action. These facts, 1 together with others involved
in related cases recently resolved by this Court 2 or
otherwise undisputed on the record, are hereunder set
forth.
1. On September 17, 1990, a Monday and a class day,
some 800 public school teachers, among them members of
the Manila Public School Teachers Association (MPSTA)
and Alliance of Concerned Teachers (ACT) undertook what
they described as "mass concerted actions" to "dramatize
and highlight" their plight resulting from the alleged failure
of the public authorities to act upon grievances that had time
and again been brought to the latter's attention. According
to them they had decided to undertake said "mass
concerted actions" after the protest rally staged at the
DECS premises on September 14, 1990 without disrupting
classes as a last call for the government to negotiate the
granting of demands had elicited no response from the
Secretary of Education. The "mass actions" consisted in
staying away from their classes, converging at the
Liwasang Bonifacio, gathering in peaceable assemblies,
etc. Through their representatives, the teachers
participating in the mass actions were served with an order
of the Secretary of Education to return to work in 24 hours
or face dismissal, and a memorandum directing the DECS
officials concerned to initiate dismissal proceedings against
those who did not comply and to hire their replacements.
Those directives notwithstanding, the mass actions
continued into the week, with more teachers joining in the
days that followed. 3
respondents herein, teachers at the Ramon Magsaysay High School, Manila, who had
agreed to support the non-political demands of the MPSTA. 4
2. For failure to heed the return-to-work order, the CHR complainants (private respondents)
were administratively charged on the basis of the principal's report and given five (5) days
to answer the charges. They were also preventively suspended for ninety (90) days
"pursuant to Section 41 of P.D. 807" and temporarily replaced (unmarked CHR Exhibits,
Annexes F, G, H). An investigation committee was consequently formed to hear the charges
in accordance with P.D. 807. 5
3. In the administrative case docketed as Case No. DECS 90-082 in which CHR
complainants Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were,
among others, named respondents, 6
the latter filed separate answers,
opted for a formal investigation, and also moved "for
suspension of the administrative proceedings pending
resolution by . . (the Supreme) Court of their application for
issuance of an injunctive writ/temporary restraining order."
But when their motion for suspension was denied by Order
dated November 8, 1990 of the Investigating Committee,
which later also denied their motion for reconsideration
orally made at the hearing of November 14, 1990, "the
respondents led by their counsel staged a walkout
signifying their intent to boycott the entire
proceedings." 7 The case eventually resulted in a Decision
of Secretary Cariño dated December 17, 1990, rendered
after evaluation of the evidence as well as the answers,
affidavits and documents submitted by the respondents,
decreeing dismissal from the service of Apolinario Esber
and the suspension for nine (9) months of Babaran, Budoy
and del Castillo. 8
4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court
of Manila against petitioner (Cariño), which was dismissed (unmarked CHR Exhibit, Annex
I). Later, the MPSTA went to the Supreme Court (on certiorari, in an attempt to nullify said
dismissal, grounded on the) alleged violation of the striking teachers" right to due process
and peaceable assembly docketed as G.R. No. 95445, supra. The ACT also filed a similar
petition before the Supreme Court . . . docketed as G.R. No. 95590." 9
Both petitions
in this Court were filed in behalf of the teacher associations,
a few named individuals, and "other teacher-members so
numerous similarly situated" or "other similarly situated
public school teachers too numerous to be impleaded."
5. In the meantime, too, the respondent teachers submitted
sworn statements dated September 27, 1990 to the
Commission on Human Rights to complain that while they
were participating in peaceful mass actions, they suddenly
learned of their replacements as teachers, allegedly without
notice and consequently for reasons completely unknown
to them. 10
6. Their complaints — and those of other teachers also "ordered suspended by the . . .
(DECS)," all numbering forty-two (42) — were docketed as "Striking Teachers CHR Case
No. 90775." In connection therewith the Commission scheduled a "dialogue" on October 11,
1990, and sent a subpoena to Secretary Cariño requiring his attendance therein. 11
On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño)
received the subpoena which was served at his office, . . . (the) Commission, with the
Chairman presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro,
proceeded to hear the case;" it heard the complainants' counsel (a) explain that his clients
had been "denied due process and suspended without formal notice, and unjustly, since
they did not join the mass leave," and (b) expatiate on the grievances which were "the cause
of the mass leave of MPSTA teachers, (and) with which causes they (CHR complainants)
sympathize." 12
The Commission thereafter issued an
Order 13reciting these facts and making the following
disposition:
To be properly apprised of the real facts of the case
and be accordingly guided in its investigation and
resolution of the matter, considering that these forty
two teachers are now suspended and deprived of
their wages, which they need very badly, Secretary
Isidro Cariño, of the Department of Education,
Culture and Sports, Dr. Erlinda Lolarga, school
superintendent of Manila and the Principal of
Ramon Magsaysay High School, Manila, are
hereby enjoined to appear and enlighten the
Commission en banc on October 19, 1990 at 11:00
A.M. and to bring with them any and all documents
relevant to the allegations aforestated herein to
assist the Commission in this matter. Otherwise,
the Commission will resolve the complaint on the
basis of complainants' evidence.
xxx xxx xxx
7. Through the Office of the Solicitor General, Secretary
Cariño sought and was granted leave to file a motion to
dismiss the case. His motion to dismiss was submitted on
November 14, 1990 alleging as grounds therefor, "that the
complaint states no cause of action and that the CHR has
no jurisdiction over the case." 14
8. Pending determination by the Commission of the motion to dismiss, judgments affecting
the "striking teachers" were promulgated in two (2) cases, as aforestated, viz.:
a) The Decision dated December l7, 1990 of Education Secretary Cariño in
Case No. DECS 90-082, decreeing dismissal from the service of Apolinario
Esber and the suspension for nine (9) months of Babaran, Budoy and del
Castillo; 15 and
b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445
and 95590 dismissing the petitions "without prejudice to any appeals, if still
timely, that the individual petitioners may take to the Civil Service Commission
on the matters complained of," 16 and inter alia "ruling that it was prima
facie lawful for petitioner Cariño to issue return-to-work orders, file
administrative charges against recalcitrants, preventively suspend them, and
issue decision on those charges." 17
9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cariño's
motion to dismiss and required him and Superintendent Lolarga "to submit their counter-
affidavits within ten (10) days . . . (after which) the Commission shall proceed to hear and
resolve the case on the merits with or without respondents counter affidavit." 18
It held
that the "striking teachers" "were denied due process of law;
. . . they should not have been replaced without a chance to
reply to the administrative charges;" there had been a
violation of their civil and political rights which the
Commission was empowered to investigate; and while
expressing its "utmost respect to the Supreme Court . . . the
facts before . . . (it) are different from those in the case
decided by the Supreme Court" (the reference being
unmistakably to this Court's joint Resolution of August 6,
1991 in G.R. Nos. 95445 and 95590, supra).
It is to invalidate and set aside this Order of December 28,
1990 that the Solicitor General, in behalf of petitioner
Cariño, has commenced the present action of certiorari and
prohibition.
The Commission on Human Rights has made clear its
position that it does not feel bound by this Court's joint
Resolution in G.R. Nos. 95445 and 95590, supra. It has
also made plain its intention "to hear and resolve the case
(i.e., Striking Teachers HRC Case No. 90-775) on the
merits." It intends, in other words, to try and decide or hear
and determine, i.e., exercise jurisdiction over the following
general issues:
1) whether or not the striking teachers were denied due
process, and just cause exists for the imposition of
administrative disciplinary sanctions on them by their
superiors; and
2) whether or not the grievances which were "the cause of
the mass leave of MPSTA teachers, (and) with which
causes they (CHR complainants) sympathize," justify their
mass action or strike.
The Commission evidently intends to itself adjudicate, that
is to say, determine with character of finality and
definiteness, the same issues which have been passed
upon and decided by the Secretary of Education, Culture &
Sports, subject to appeal to the Civil Service Commission,
this Court having in fact, as aforementioned, declared that
the teachers affected may take appeals to the Civil Service
Commission on said matters, if still timely.
The threshold question is whether or not the Commission
on Human Rights has the power under the Constitution to
do so; whether or not, like a court of justice, 19 or even a
quasi-judicial agency, 20 it has jurisdiction or adjudicatory
powers over, or the power to try and decide, or hear and
determine, certain specific type of cases, like alleged
human rights violations involving civil or political rights.
The Court declares the Commission on Human Rights to
have no such power; and that it was not meant by the
fundamental law to be another court or quasi-judicial
agency in this country, or duplicate much less take over the
functions of the latter.
The most that may be conceded to the Commission in the
way of adjudicative power is that it may investigate, i.e.,
receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political
rights. But fact finding is not adjudication, and cannot be
likened to the judicial function of a court of justice, or even
a quasi-judicial agency or official. The function of receiving
evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To
be considered such, the faculty of receiving evidence and
making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and
definitively, subject to such appeals or modes of review as
may be provided by law. 21 This function, to repeat, the
Commission does not have. 22
The proposition is made clear by the constitutional provisions specifying the powers of the
Commission on Human Rights.
The Commission was created by the 1987 Constitution as an independent
office. 23
Upon its constitution, it succeeded and superseded
the Presidential Committee on Human Rights existing at the
time of the effectivity of the Constitution. 24 Its powers and
functions are the following 25
(1) Investigate, on its own or on complaint by any party, all forms of human
rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for
contempt for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide
for preventive measures and legal aid services to the underprivileged whose
human rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights
and to provide for compensation to victims of violations of human rights, or their
families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
As should at once be observed, only the first of the enumerated powers and functions bears
any resemblance to adjudication or adjudgment. The Constitution clearly and categorically
grants to the Commission the power to investigate all forms of human rights violations
involving civil and political rights. It can exercise that power on its own initiative or on
complaint of any person. It may exercise that power pursuant to such rules of procedure as
it may adopt and, in cases of violations of said rules, cite for contempt in accordance with
the Rules of Court. In the course of any investigation conducted by it or under its authority,
it may grant immunity from prosecution to any person whose testimony or whose possession
of documents or other evidence is necessary or convenient to determine the truth. It may
also request the assistance of any department, bureau, office, or agency in the performance
of its functions, in the conduct of its investigation or in extending such remedy as may be
required by its findings. 26
But it cannot try and decide cases (or hear and determine causes) as courts of justice, or
even quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the
popular or the technical sense, these terms have well understood and quite distinct
meanings.
"Investigate," commonly understood, means to examine, explore, inquire or delve or probe
into, research on, study. The dictionary definition of "investigate" is "to observe or study
closely: inquire into systematically. "to search or inquire into: . . . to subject to an official
probe . . .: to conduct an official inquiry." 27
The purpose of investigation,
of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts
established by the inquiry.
The legal meaning of "investigate" is essentially the same:
"(t)o follow up step by step by patient inquiry or observation.
To trace or track; to search into; to examine and inquire into
with care and accuracy; to find out by careful inquisition;
examination; the taking of evidence; a legal inquiry;" 28 "to
inquire; to make an investigation," "investigation" being in
turn describe as "(a)n administrative function, the exercise
of which ordinarily does not require a hearing. 2 Am J2d
Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the
discovery and collection of facts concerning a certain matter
or matters." 29
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally
(the rights and duties of the parties to a court case) on the merits of issues raised: . . . to
pass judgment on: settle judicially: . . . act as judge." 30
And "adjudge" means
"to decide or rule upon as a judge or with judicial or quasi-
judicial powers: . . . to award or grant judicially in a case of
controversy . . . ." 31
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means:
"To pass on judicially, to decide, settle or decree, or to sentence or condemn. . . . Implies a
judicial determination of a fact, and the entry of a judgment." 32
Hence it is that the Commission on Human Rights, having merely the power "to investigate,"
cannot and should not "try and resolve on the merits" (adjudicate) the matters involved in
Striking Teachers HRC Case No. 90-775, as it has announced it means to do; and it cannot
do so even if there be a claim that in the administrative disciplinary proceedings against the
teachers in question, initiated and conducted by the DECS, their human rights, or civil or
political rights had been transgressed. More particularly, the Commission has no power to
"resolve on the merits" the question of (a) whether or not the mass concerted actions
engaged in by the teachers constitute and are prohibited or otherwise restricted by law; (b)
whether or not the act of carrying on and taking part in those actions, and the failure of the
teachers to discontinue those actions, and return to their classes despite the order to this
effect by the Secretary of Education, constitute infractions of relevant rules and regulations
warranting administrative disciplinary sanctions, or are justified by the grievances GUTIERREZ, JR., J., concurring:
complained of by them; and (c) what where the particular acts done by each individual
teacher and what sanctions, if any, may properly be imposed for said acts or omissions.
I concur in the result. The teachers are not to be blamed for
exhausting all means to overcome the Secretary's arbitrary
These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of act of not reinstating them.
Education, being within the scope of the disciplinary powers granted to him under the Civil
Service Law, and also, within the appellate jurisdiction of the Civil Service Commission.
PARAS, J., concurring:

I concur with the brilliant and enlightening decision of Chief

Justice Andres R. Narvasa
Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the
issues and resolved them, 33
and it appears that appeals have been I wish to add however that the Commission on Human
seasonably taken by the aggrieved parties to the Civil Rights should concern itself in this case and in many other
Service Commission; and even this Court itself has had similar cases:
occasion to pass upon said issues. 34
(1) not only with the human rights of striking
teachers but also the human rights of students and
their parents;
Now, it is quite obvious that whether or not the conclusions reached by the Secretary of
Education in disciplinary cases are correct and are adequately based on substantial
(2) not only with the human rights of the accused
evidence; whether or not the proceedings themselves are void or defective in not having
but also the human rights of the victims and the
accorded the respondents due process; and whether or not the Secretary of Education had
latter's families;
in truth committed "human rights violations involving civil and political rights," are matters
which may be passed upon and determined through a motion for reconsideration addressed
to the Secretary Education himself, and in the event of an adverse verdict, may be reviewed
(3) not only with the human rights of those who rise
by the Civil Service Commission and eventually the Supreme Court.
against the government but also those who defend
the same;
The Commission on Human Rights simply has no place in this scheme of things. It has no
business intruding into the jurisdiction and functions of the Education Secretary or the Civil
(4) not only the human rights of striking laborers but
Service Commission. It has no business going over the same ground traversed by the latter
also those who as a consequence of strikes may be
and making its own judgment on the questions involved. This would accord success to what
laid off because of financial repercussions.
may well have been the complaining teachers' strategy to abort, frustrate or negate the
judgment of the Education Secretary in the administrative cases against them which they The defense of human rights is not a monopoly of a
anticipated would be adverse to them. government agency (such as the Commission on Human
Rights) nor the monopoly of a group of lawyers defending
This cannot be done. It will not be permitted to be done.
so-called "human rights' but the responsibility of ALL
AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.

Finally, the Commission should realize that while there

In any event, the investigation by the Commission on Human Rights would serve no useful
are "human rights", there are also corresponding "human
purpose. If its investigation should result in conclusions contrary to those reached by
obligations."
Secretary Cariño, it would have no power anyway to reverse the Secretary's conclusions.
Reversal thereof can only by done by the Civil Service Commission and lastly by this Court.
The only thing the Commission can do, if it concludes that Secretary Cariño was in error, is
PADILLA, J., dissenting:
to refer the matter to the appropriate Government agency or tribunal for assistance; that
would be the Civil Service Commission. 35
It cannot arrogate unto itself I vote to dismiss the petition for the same reasons stated in
the appellate jurisdiction of the Civil Service Commission. my earlier separate opinion filed in this case.

WHEREFORE, the petition is granted; the Order of Separate Opinions

December 29, 1990 is ANNULLED and SET ASIDE, and
the respondent Commission on Human Rights and the GUTIERREZ, JR., J., concurring:
Chairman and Members thereof are prohibited "to hear and
resolve the case (i.e., Striking Teachers HRC Case No. 90- I concur in the result. The teachers are not to be blamed for
775) on the merits." exhausting all means to overcome the Secretary's arbitrary
act of not reinstating them.
SO ORDERED.
PARAS, J., concurring:
Melencio-Herrera, Cruz, Feliciano, Bidin, Griño-Aquino,
Medialdea, Regalado, Davide, Jr. and Romero, JJ, concur. I concur with the brilliant and enlightening decision of Chief
Justice Andres R. Narvasa
Separate Opinions
I wish to add however that the Commission on Human
Rights should concern itself in this case and in many other
similar cases:
(1) not only with the human rights of striking
teachers but also the human rights of students and
their parents;
(2) not only with the human rights of the accused
but also the human rights of the victims and the
latter's families;
(3) not only with the human rights of those who rise
against the government but also those who defend
the same;
(4) not only the human rights of striking laborers but
also those who as a consequence of strikes may be
laid off because of financial repercussions.
The defense of human rights is not a monopoly of a
government agency (such as the Commission on Human
Rights) nor the monopoly of a group of lawyers defending
so-called "human rights' but the responsibility of ALL
AGENCIES (governmental or private) and of ALL
LAWYERS, JUDGES, and JUSTICES.
Finally, the Commission should realize that while there
are "human rights", there are also corresponding "human
obligations."
PADILLA, J., dissenting:
I vote to dismiss the petition for the same reasons stated in
my earlier separate opinion filed in this case.
2) G.R. No. 100150 January 5, 1994
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO
ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO,
AND OTHERS AS JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
VITUG, J.:
The extent of the authority and power of the Commission on
Human Rights ("CHR") is again placed into focus in this
petition for prohibition, with prayer for a restraining order
and preliminary injunction. The petitioners ask us to prohibit
public respondent CHR from further hearing and
investigating CHR Case No. 90-1580, entitled "Fermo, et al.
vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9
July 1990, signed by Carlos Quimpo (one of the petitioners)
in his capacity as an Executive Officer of the Quezon City
Integrated Hawkers Management Council under the Office
of the City Mayor, was sent to, and received by, the private
respondents (being the officers and members of the North
EDSA Vendors Association, Incorporated). In said notice,
the respondents were given a grace-period of three (3) days
(up to 12 July 1990) within which to vacate the questioned
premises of North EDSA.1Prior to their receipt of the
demolition notice, the private respondents were informed by
petitioner Quimpo that their stalls should be removed to give
way to the "People's Park".2 On 12 July 1990, the group, led
by their President Roque Fermo, filed a letter-complaint
(Pinag-samang Sinumpaang Salaysay) with the CHR
against the petitioners, asking the late CHR Chairman Mary
Concepcion Bautista for a letter to be addressed to then
Mayor Brigido Simon, Jr., of Quezon City to stop the
demolition of the private respondents' stalls, sari-
sari stores, and carinderia along North EDSA. The
complaint was docketed as CHR Case No. 90-1580.3 On 23
July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls and
shanties at North EDSA pending resolution of the
vendors/squatters' complaint before the Commission" and
ordering said petitioners to appear before the CHR.4
On the basis of the sworn statements submitted by the
private respondents on 31 July 1990, as well as CHR's own
ocular inspection, and convinced that on 28 July 1990 the
petitioners carried out the demolition of private respondents'
stalls, sari-sari stores and carinderia,5 the CHR, in its
resolution of 1 August 1990, ordered the disbursement of
financial assistance of not more than P200,000.00 in favor
of the private respondents to purchase light housing
materials and food under the Commission's supervision and
again directed the petitioners to "desist from further
demolition, with the warning that violation of said order
would lead to a citation for contempt and arrest."6
A motion to dismiss,7 dated 10 September 1990,
questioned CHR's jurisdiction. The motion also averred,
among other things, that:
1. this case came about due to the alleged
violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement
whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the
dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement
(revealed) that the moratorium referred to
therein refers to moratorium in the
demolition of the structures of poor
dwellers;
4. that the complainants in this case (were)
not poor dwellers but independent
business entrepreneurs even this
Honorable Office admitted in its resolution
of 1 August 1990 that the complainants are
indeed, vendors;
5. that the complainants (were) occupying
government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon
City; . . . and
6. that the City Mayor of Quezon City (had)
the sole and exclusive discretion and
authority whether or not a certain business
establishment (should) be allowed to
operate within the jurisdiction of Quezon
City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by
law and ordinance.8
During the 12 September 1990 hearing, the petitioners
moved for postponement, arguing that the motion to dismiss
set for 21 September 1990 had yet to be resolved. The
petitioners likewise manifested that they would bring the
case to the courts.
On 18 September 1990 a supplemental motion to dismiss
was filed by the petitioners, stating that the Commission's
authority should be understood as being confined only to
the investigation of violations of civil and political rights, and
that "the rights allegedly violated in this case (were) not civil
and political rights, (but) their privilege to engage in
business."9
On 21 September 1990, the motion to dismiss was heard
and submitted for resolution, along with the contempt
charge that had meantime been filed by the private
respondents, albeit vigorously objected to by petitioners (on
the ground that the motion to dismiss was still then
unresolved).10
In an Order,11 dated 25 September 1990, the CHR cited the
petitioners in contempt for carrying out the demolition of the
stalls, sari-sari stores and carinderia despite the "order to
desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991,12 the CHR issued an Order, denying
petitioners' motion to dismiss and supplemental motion to
dismiss, in this wise:
Clearly, the Commission on Human Rights
under its constitutional mandate had
jurisdiction over the complaint filed by the
squatters-vendors who complained of the
gross violations of their human and
constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack
of merit.13
The CHR opined that "it was not the intention of the
(Constitutional) Commission to create only a paper tiger
limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the
power to provide appropriate legal measures for the
protection of human rights of all persons within the
Philippines . . . ." It added:
The right to earn a living is a right essential
to one's right to development, to life and to
dignity. All these brazenly and violently
ignored and trampled upon by respondents
with little regard at the same time for the
basic rights of women and children, and
their health, safety and welfare. Their
actions have psychologically scarred and
traumatized the children, who were witness
and exposed to such a violent
demonstration of Man's inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for
reconsideration was denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25
June 1991; it was subsequently reinstated, however, in our
resolution16 of 18 June 1991, in which we also issued a
temporary restraining order, directing the CHR to "CEASE
and DESIST from further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business
rights" of the private respondents whose stalls were
demolished by the petitioners at the instance and authority
given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners;
and
c) to disburse the amount of P200,000.00 as financial aid to
the vendors affected by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-
General was excused from filing his comment for public
respondent CHR. The latter thus filed its own
comment,18 through Hon. Samuel Soriano, one of its
Commissioners. The Court also resolved to dispense with
the comment of private respondent Roque Fermo, who had
since failed to comply with the resolution, dated 18 July
1991, requiring such comment.
The petition has merit.
The Commission on Human Rights was created by the
1987
Constitution.19 It was formally constituted by then President
Corazon Aquino via Executive Order No. 163,20 issued on
5 May 1987, in the exercise of her legislative power at the
time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights.21
The powers and functions22 of the Commission are defined
by the 1987 Constitution, thus: to —
(1) Investigate, on its own or on complaint
by any party, all forms of human rights
violations involving civil and political rights;
(2) Adopt its operational guidelines and
rules of procedure, and cite for contempt
for violations thereof in accordance with the
Rules of Court;
(3) Provide appropriate legal measures for
the protection of human rights of all
persons within the Philippines, as well as
Filipinos residing abroad, and provide for
preventive measures and legal aid
services to the underprivileged whose
human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails,
prisons, or detention facilities;
(5) Establish a continuing program of
research, education, and information to
enhance respect for the primacy of human
rights;
(6) Recommend to the Congress effective
measures to promote human rights and to
provide for compensation to victims of
violations of human rights, or their families;
(7) Monitor the Philippine Government's
compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any
person whose testimony or whose
possession of documents or other
evidence is necessary or convenient to
determine the truth in any investigation
conducted by it or under its authority;
(9) Request the assistance of any
department, bureau, office, or agency in
the performance of its functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and
functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to
dismiss, the CHR theorizes that the intention of the
members of the Constitutional Commission is to make CHR
a quasi-judicial body.23 This view, however, has not
heretofore been shared by this Court. In Cariño v.
Commission on Human Rights,24 the Court, through then
Associate Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated powers
and functions that bears any resemblance to adjudication
or adjudgment," but that resemblance can in no way be
synonymous to the adjudicatory power itself. The Court
explained:
. . . (T)he Commission on Human Rights . .
. was not meant by the fundamental law to
be another court or quasi-judicial agency in
this country, or duplicate much less take
over the functions of the latter.
The most that may be conceded to the
Commission in the way of adjudicative
power is that it may investigate, i.e.,
receive evidence and make findings of fact
as regards claimed human rights violations
involving civil and political rights. But fact
finding is not adjudication, and cannot be
likened to the judicial function of a court of
justice, or even a quasi-judicial agency or
official. The function of receiving evidence
and ascertaining therefrom the facts of a
controversy is not a judicial function,
properly speaking. To be considered such,
the faculty of receiving evidence and
making factual conclusions in a
controversy must be accompanied by the
authority of applying the law to those
factual conclusions to the end that the
controversy may be decided or determined
authoritatively, finally and definitively,
subject to such appeals or modes of review
as may be provided by law. This function,
to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now
proceed to the other kernel of this controversy and, its is, to
determine the extent of CHR's investigative power.
It can hardly be disputed that the phrase "human rights" is
so generic a term that any attempt to define it, albeit not a
few have tried, could at best be described as inconclusive.
Let us observe. In a symposium on human rights in the
Philippines, sponsored by the University of the Philippines
in 1977, one of the questions that has been propounded is
"(w)hat do you understand by "human rights?" The
participants, representing different sectors of the society,
have given the following varied answers:
Human rights are the basic rights which
inhere in man by virtue of his humanity.
They are the same in all parts of the world,
whether the Philippines or England, Kenya
or the Soviet Union, the United States or
Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as
the right to life, liberty, and property;
freedom of speech, of the press, of religion,
academic freedom, and the rights of the
accused to due process of law; political
rights, such as the right to elect public
officials, to be elected to public office, and
to form political associations and engage in
politics; and social rights, such as the right
to an education, employment, and social
services.25
Human rights are the entitlement that
inhere in the individual person from the
sheer fact of his humanity. . . . Because
they are inherent, human rights are not
granted by the State but can only be
recognized and protected by it.26
(Human rights include all) the civil, political,
economic, social, and cultural rights
defined in the Universal Declaration of
Human Rights.27
Human rights are rights that pertain to man
simply because he is human. They are part
of his natural birth, right, innate and
inalienable.28
The Universal Declaration of Human Rights, as well as, or
more specifically, the International Covenant on Economic,
Social and Cultural Rights and International Covenant on
Civil and Political Rights, suggests that the scope of human
rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil
relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual,
along with what is generally considered to be his inherent
and inalienable rights, encompassing almost all aspects of
life.
Have these broad concepts been equally contemplated by
the framers of our 1986 Constitutional Commission in
adopting the specific provisions on human rights and in
creating an independent commission to safeguard these
rights? It may of value to look back at the country's
experience under the martial law regime which may have,
in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among
those voices, aptly represented perhaps of the sentiments
expressed by others, comes from Mr. Justice J.B.L. Reyes,
a respected jurist and an advocate of civil liberties, who, in
his paper, entitled "Present State of Human Rights in the
Philippines,"29 observes:
But while the Constitution of 1935 and that
of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the
International Covenant, these rights
became unavailable upon the proclamation
of Martial Law on 21 September 1972.
Arbitrary action then became the rule.
Individuals by the thousands became
subject to arrest upon suspicion, and were
detained and held for indefinite periods,
sometimes for years, without charges, until
ordered released by the Commander-in-
Chief or this representative. The right to
petition for the redress of grievances
became useless, since group actions were
forbidden. So were strikes. Press and other
mass media were subjected to censorship
and short term licensing. Martial law
brought with it the suspension of the writ of
habeas corpus, and judges lost
independence and security of tenure,
except members of the Supreme Court.
They were required to submit letters of
resignation and were dismissed upon the
acceptance thereof. Torture to extort
confessions were practiced as declared by
international bodies like Amnesty
International and the International
Commission of Jurists.
Converging our attention to the records of the Constitutional
Commission, we can see the following discussions during
its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR)
task must be made clear in view of the
importance of human rights and also
because civil and political rights have been
determined by many international
covenants and human rights legislations in
the Philippines, as well as the Constitution,
specifically the Bill of Rights and
subsequent legislation. Otherwise, if
we cover such a wide territory in area, we
might diffuse its impact and the precise
nature of its task, hence, its effectivity
would also be curtailed.
So, it is important to delienate the
parameters of its tasks so that the
commission can be most effective.
MR. BENGZON. That is precisely my
difficulty because civil and political rights
are very broad. The Article on the Bill of
Rights covers civil and political rights.
Every single right of an individual involves
his civil right or his political right. So, where
do we draw the line?
MR. GARCIA. Actually, these civil and
political rights have been made clear in the
language of human rights advocates, as
well as in the Universal Declaration of
Human Rights which addresses a number
of articles on the right to life, the right
against torture, the right to fair and public
hearing, and so on. These are very specific
rights that are considered enshrined in
many international documents and legal
instruments as constituting civil and
political rights, and these are precisely
what we want to defend here.
MR. BENGZON. So, would the
commissioner say civil and political rights
as defined in the Universal Declaration of
Human Rights?
MR. GARCIA. Yes, and as I have
mentioned, the International Covenant of
Civil and Political Rights distinguished this
right against torture.
MR. BENGZON. So as to distinguish this
from the other rights that we have?
MR. GARCIA. Yes, because the other
rights will encompass social and economic
rights, and there are other violations of
rights of citizens which can be addressed
to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the
commission to define its functions, and,
therefore, in doing that the commission will
be authorized to take under its wings cases
which perhaps heretofore or at this
moment are under the jurisdiction of the
ordinary investigative and prosecutorial
agencies of the government. Am I correct?
MR. GARCIA. No. We have already
mentioned earlier that we would like to
define the specific parameters which cover
civil and political rights as covered by the
international standards governing the
behavior of governments regarding the
particular political and civil rights of
citizens, especially of political detainees or
prisoners. This particular aspect we have
experienced during martial law which we
would now like to safeguard.
MR. BENGZON. Then, I go back to that
question that I had. Therefore, what we are
really trying to say is, perhaps, at the
proper time we could specify all those
rights stated in the Universal Declaration of
Human Rights and defined as human
rights. Those are the rights that we
envision here?
MR. GARCIA. Yes. In fact, they are also
enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the
Gentleman saying that all the rights under
the Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain
to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the
discussion on the scope of human rights, I
would like to state that in the past regime,
everytime we invoke the violation of human
rights, the Marcos regime came out with
the defense that, as a matter of fact, they
had defended the rights of people to decent
living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the
definition of human rights to political
rights. Is that the sense of the committee,
so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and
respond also to repeated points raised by
the previous speaker.
There are actually six areas where this
Commission on Human Rights could act
effectively: 1) protection of rights of political
detainees; 2) treatment of prisoners and
the prevention of tortures; 3) fair and public
trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other
crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner
Guingona is recognized.
MR. GUINGONA. Thank You Madam
President.
I would like to start by saying that I agree
with Commissioner Garcia that we
should, in order to make the proposed
Commission more effective, delimit as
much as possible, without prejudice to
future expansion. The coverage of the
concept and jurisdictional area of the
term "human rights". I was actually
disturbed this morning when the reference
was made without qualification to the rights
embodied in the universal Declaration of
Human Rights, although later on, this was
qualified to refer to civil and political rights
contained therein.
If I remember correctly, Madam President,
Commissioner Garcia, after mentioning the
Universal Declaration of Human Rights of
1948, mentioned or linked the concept of
human right with other human rights
specified in other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona
referring to the Declaration of Torture of
1985?
MR. GUINGONA. I do not know, but the
commissioner mentioned another.
MR. GARCIA. Madam President, the other
one is the International Convention on Civil
and Political Rights of which we are
signatory.
MR. GUINGONA. I see. The only problem
is that, although I have a copy of the
Universal Declaration of Human Rights
here, I do not have a copy of the other
covenant mentioned. It is quite possible
that there are rights specified in that other
convention which may not be specified
here. I was wondering whether it would be
wise to link our concept of human rights to
general terms like "convention," rather than
specify the rights contained in the
convention.
As far as the Universal Declaration of
Human Rights is concerned, the
Committee, before the period of
amendments, could specify to us which of
these articles in the Declaration will fall
within the concept of civil and political
rights, not for the purpose of including
these in the proposed constitutional article,
but to give the sense of the Commission as
to what human rights would be included,
without prejudice to expansion later on, if
the need arises. For example, there was no
definite reply to the question of
Commissioner Regalado as to whether the
right to marry would be considered a civil
or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to
repeat the various specific civil and political
rights that we felt must be envisioned
initially by this provision — freedom from
political detention and arrest prevention of
torture, right to fair and public trials, as well
as crimes involving disappearance,
salvagings, hamlettings and collective
violations. So, it is limited to politically
related crimes precisely to protect the civil
and political rights of a specific group of
individuals, and therefore, we are not
opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just
for the record, the Gentlemen is no longer
linking his concept or the concept of the
Committee on Human Rights with the so-
called civil or political rights as contained in
the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier
the Universal Declaration of Human
Rights, I was referring to an international
instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we
will refer to each and every specific article
therein, but only to those that pertain to the
civil and politically related, as we
understand it in this Commission on
Human Rights.
MR. GUINGONA. Madam President, I am
not even clear as to the distinction between
civil and social rights.
MR. GARCIA. There are two international
covenants: the International Covenant and
Civil and Political Rights and the
International Covenant on Economic,
Social and Cultural Rights. The second
covenant contains all the different rights-
the rights of labor to organize, the right to
education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at
the moment the sense of the committee to
those that the Gentlemen has specified.
 MR. GARCIA. Yes, to civil and political
rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the
standpoint of the victims of human rights, I
cannot stress more on how much we need
a Commission on Human Rights. . . .
. . . human rights victims are usually
penniless. They cannot pay and very few
lawyers will accept clients who do not pay.
And so, they are the ones more abused
and oppressed. Another reason is, the
cases involved are very delicate — torture,
salvaging, picking up without any warrant
of arrest, massacre — and the persons
who are allegedly guilty are people in
power like politicians, men in the military
and big shots. Therefore, this Human
Rights Commission must be independent.
I would like very much to emphasize how
much we need this commission, especially
for the little Filipino, the little individual who
needs this kind of help and cannot get
it. And I think we should concentrate only
on civil and political violations because if
we open this to land, housing and health,
we will have no place to go again and we
will not receive any response. . .
.30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of
the 1987 Constitution, is a provision empowering the
Commission on Human Rights to "investigate, on its own or
on complaint by any party, all forms of human rights
violations involving civil and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring —
(t)o those (rights) that belong to every
citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not
connected with the organization or
administration of the government. They
include the rights of property, marriage,
equal protection of the laws, freedom of
contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by
virtue of his citizenship in a state or
community. Such term may also refer, in its
general sense, to rights capable of being
enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against
involuntary servitude, religious persecution, unreasonable
searches and seizures, and imprisonment for debt.32
Political rights,33 on the other hand, are said to refer to the
right to participate, directly or indirectly, in the establishment
or administration of government, the right of suffrage, the
right to hold public office, the right of petition and, in general,
the rights appurtenant to citizenship vis-a-vis the
management of government.34
Recalling the deliberations of the Constitutional
Commission, aforequoted, it is readily apparent that the
delegates envisioned a Commission on Human Rights that
would focus its attention to the more severe cases of human
rights violations. Delegate Garcia, for instance, mentioned
such areas as the "(1) protection of rights of political
detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of
disappearances, (5) salvagings and hamletting, and (6)
other crimes committed against the religious." While the
enumeration has not likely been meant to have any
preclusive effect, more than just expressing a statement of
priority, it is, nonetheless, significant for the tone it has set.
In any event, the delegates did not apparently take comfort
in peremptorily making a conclusive delineation of the
CHR's scope of investigatorial jurisdiction. They have thus
seen it fit to resolve, instead, that "Congress may provide
for other cases of violations of human rights that should fall
within the authority of the Commission, taking into account
its recommendation."35
In the particular case at hand, there is no cavil that what are
sought to be demolished are the stalls, sari-sari stores
and carinderia, as well as temporary shanties, erected by
private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land
adjoins the North EDSA of Quezon City which, this Court
can take judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be likewise
simply ignored. It is indeed paradoxical that a right which is
claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is, in fact, extant. Be that as it
may, looking at the standards hereinabove discoursed vis-
a-vis the circumstances obtaining in this instance, we are
not prepared to conclude that the order for the demolition of
the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of "human
rights violations involving civil and political rights" intended
by the Constitution.
On its contempt powers, the CHR is constitutionally
authorized to "adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof in
accordance with the Rules of Court." Accordingly, the CHR
acted within its authority in providing in its revised rules, its
power "to cite or hold any person in direct or indirect
contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for
in the Rules of Court." That power to cite for contempt,
however, should be understood to apply only to violations
of its adopted operational guidelines and rules of procedure
essential to carry out its investigatorial powers. To
exemplify, the power to cite for contempt could be exercised
against persons who refuse to cooperate with the said body,
or who unduly withhold relevant information, or who decline
to honor summons, and the like, in pursuing its investigative
work. The "order to desist" (a semantic interplay for a
restraining order) in the instance before us, however, is not
investigatorial in character but prescinds from an
adjudicative power that it does not possess. In Export
Processing Zone Authority vs. Commission on Human
Rights,36 the Court, speaking through Madame Justice
Carolina Griño-Aquino, explained:
The constitutional provision directing the
CHR to "provide for preventive measures
and legal aid services to the
underprivileged whose human rights have
been violated or need protection" may not
be construed to confer jurisdiction on the
Commission to issue a restraining order or
writ of injunction for, it that were the
intention, the Constitution would have
expressly said so. "Jurisdiction is conferred
only by the Constitution or by law". It is
never derived by implication.
Evidently, the "preventive measures and
legal aid services" mentioned in the
Constitution refer to extrajudicial and
judicial remedies (including a writ of
preliminary injunction) which the CHR may
seek from proper courts on behalf of the
victims of human rights violations. Not
being a court of justice, the CHR itself has
no jurisdiction to issue the writ, for a writ of
preliminary injunction may only be issued
"by the judge of any court in which the
action is pending [within his district], or by
a Justice of the Court of Appeals, or of the
Supreme Court. . . . A writ of preliminary
injunction is an ancillary remedy. It is
available only in a pending principal action,
for the preservation or protection of the
rights and interests of a party thereto, and
for no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for
appropriate action, its findings and recommendations to any
appropriate agency of government.37
The challenge on the CHR's disbursement of the amount of
P200,000.00 by way of financial aid to the vendors affected
by the demolition is not an appropriate issue in the instant
petition. Not only is there lack of locus standi on the part of
the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate
administrative agencies concerned to initially consider.
The public respondent explains that this petition for
prohibition filed by the petitioners has become moot and
academic since the case before it (CHR Case No. 90-1580)
has already been fully heard, and that the matter is merely
awaiting final resolution. It is true that prohibition is a
preventive remedy to restrain the doing of an act about to
be done, and not intended to provide a remedy for an act
already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case
No. 90-1580. The instant petition has been intended,
among other things, to also prevent CHR from precisely
doing that.39
WHEREFORE, the writ prayed for in this petition is
GRANTED. The Commission on Human Rights is hereby
prohibited from further proceeding with CHR Case No. 90-
1580 and from implementing the P500.00 fine for contempt.
The temporary restraining order heretofore issued by this
Court is made permanent. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide,
Jr., Romero, Nocon, Bellosillo, Melo, Quiason and Puno,
JJ., concur.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The
Commission on Human rights, et al.," G.R. No. 96681, 2
December 1991, 204 SCRA 483 in relation to the resolution
of 29 January 1991 and my dissenting opinion in "Export
Processing Zone Authority vs. The Commission on Human
Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I
am of the considered view that the CHR can issue a cease
and desist order to maintain a status quo pending its
investigation of a case involving an alleged human rights
violation; that such cease and desist order maybe
necessary in situations involving a threatened violation of
human rights, which the CHR intents to investigate.
In the case at bench, I would consider the threatened
demolition of the stalls, sari-sari stores and carinderias as
well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights
violation because it involves an impairment of the civil rights
of said private respondents, under the definition of civil
rights cited by the majority opinion (pp. 20-21) and which
the CHR has unquestioned authority to investigate (Section
18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend
beyond impressive displays of placards at street corners.
Positive action and results are what count. Certainly, the
cause of human rights is not enhanced when the very
constitutional agency tasked to protect and vindicate
human rights is transformed by us, from the start, into a tiger
without dentures but with maimed legs to boot. I submit the
CHR should be given a wide latitude to look into and
investigate situations which may (or may not ultimately)
involve human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings.
Separate Opinions
PADILLA, J., dissenting:
I reiterate my separate opinion in "Carino, et al. vs. The
Commission on Human rights, et al.," G.R. No. 96681, 2
December 1991, 204 SCRA 483 in relation to the resolution
of 29 January 1991 and my dissenting opinion in "Export
Processing Zone Authority vs. The Commission on Human
Rights,
et al.," G.R. No. 101476, 14 April 1992, 208 SCRA 125. I
am of the considered view that the CHR can issue a cease
and desist order to maintain a status quo pending its
investigation of a case involving an alleged human rights
violation; that such cease and desist order maybe
necessary in situations involving a threatened violation of
human rights, which the CHR intends to investigate.
In the case at bench, I would consider the threatened
demolition of the stalls, sari-sari stores and carinderias as
well as the temporary shanties owned by the private
respondents as posing prima facie a case of human rights
violation because it involves an impairment of the civil rights
of said private respondents, under the definition of civil
rights cited by the majority opinion (pp. 20-21) and which
the CHR has unquestioned authority to investigate (Section
18, Art. XIII, 1987 Constitution).
Human rights demand more than lip service and extend
beyond impressive displays of placards at street corners.
Positive action and results are what count. Certainly, the
cause of human rights is not enhanced when the very
constitutional agency tasked to protect and vindicate
human rights is transformed by us, from the start, into a tiger
without dentures but with maimed legs to boot. I submit the
CHR should be given a wide latitude to look into and
investigate situations which may (or may not ultimately)
involve human rights violations.
ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings.
3) G.R. No. 101476 April 14, 1992
EXPORT PROCESSING ZONE AUTHORITY, petitioner,
vs.
THE COMMISSION ON HUMAN RIGHTS, TERESITA
VALLES, LORETO ALEDIA and PEDRO
ORDONEZ, respondents.
GRIÑO-AQUINO, J.:
On May 30, 1980, P.D. 1980 was issued reserving and
designating certain parcels of land in Rosario and General
Trias, Cavite, as the "Cavite Export Processing Zone"
(CEPZ). For purposes of development, the area was
divided into Phases I to IV. A parcel of Phase IV was bought
by Filoil Refinery Corporation, formerly Filoil Industrial
Estate, Inc. The same parcel was later sold by Filoil to the
Export Processing Zone Authority (EPZA).
Before EPZA could take possession of the area, several
individuals had entered the premises and planted
agricultural products therein without permission from EPZA
or its predecessor, Filoil. To convince the intruders to depart
peacefully, EPZA, in 1981, paid a P10,000-financial-
assistance to those who accepted the same and signed
quitclaims. Among them were Teresita Valles and Alfredo
Aledia, father of respondent Loreto Aledia.
Ten years later, on May 10, 1991, respondent Teresita
Valles, Loreto Aledia and Pedro Ordoñez filed in the
respondent Commission on Human Rights (CHR) a joint
complaint (Pinagsamahang Salaysay) praying for "justice
and other reliefs and remedies" ("Katarungan at iba pang
tulong"). The CHR conducted an investigation of the
complaint.
According to the CHR, the private respondents, who are
farmers, filed in the Commission on May 10, 1991 a verified
complaint for violation of their human rights. They alleged
that on March 20, 1991, at 10:00 o'clock in the morning.
Engineer Neron Damondamon, EPZA Project Engineer,
accompanied by his subordinates and members of the
215th PNP Company, brought a bulldozer and a crane to
level the area occupied by the private respondents who
tried to stop them by showing a copy of a letter from the
Office of the President of the Philippines ordering
postponement of the bulldozing. However, the letter was
crumpled and thrown to the ground by a member of
Damondamon's group who proclaimed that: "The President
in Cavite is Governor Remulla!"
On April 3, 1991, mediamen who had been invited by the
private respondents to cover the happenings in the area
were beaten up and their cameras were snatched from
them by members of the Philippine National Police and
some government officials and their civilian followers.
On May 17, 1991, the CHR issued an Order of injunction
commanding EPZA, the 125th PNP Company and
Governor Remulla and their subordinates to desist from
committing further acts of demolition, terrorism, and
harassment until further orders from the Commission and to
appeal before the Commission on May 27, 1991 at 9:00
a.m. for a dialogue (Annex A).
On May 25, 1991, two weeks later, the same group
accompanied by men of Governor Remulla, again
bulldozed the area. They allegedly handcuffed private
respondent Teresita Valles, pointed their firearms at the
other respondents, and fired a shot in the air.
On May 28, 1991, CHR Chairman Mary Concepcion
Bautista issued another injunction Order reiterating her
order of May 17, 1991 and expanded it to include the
Secretary of Public Works and Highways, the contractors,
and their subordinates. The order reads as follows:
Considering the sworn statements of the
farmers whose farmlands are being
bulldozed and the wanton destruction of
their irrigation canals which prevent
cultivation at the farmlands as well as the
claim of ownership of the lands by some
farmers-complainants, and their
possession and cultivation thereof
spanning decades, including the failure of
the officials concerned to comply with the
Constitutional provision on the eviction of
rural "squatters", the Commission
reiterates its Order of May 17, 1991,
andfurther orders the Secretary of Public
Works and Highways, their Contractors
and representatives to refrain and desist
from bulldozing the farmlands of the
complainants-farmers who have come to
the Commission for relief, during the
pendency of this investigation and to
refrain from further destruction of the
irrigation canals in the area until further
orders of the Commission.
This dialogue is reset to June 10, 1991 at
9 00 a.m. and the Secretary of the
Department of Public Works and Highways
or his representative is requested to
appear. (p. 20, Rollo; emphasis supplied)
On July 1, 1991, EPZA filed in the CHR a motion to lift the
Order of Injunction for lack of authority to issue injunctive
writs and temporary restraining orders.
On August 16, 1991, the Commission denied the motion.
On September 11, 1991, the petitioner, through the
Government Corporate Counsel, filed in this Court a special
civil action of certiorari and prohibition with a prayer for the
issuance of a restraining order and/or preliminary
injunction, alleging that the CHR acted in excess of its
jurisdiction and with grave abuse of discretion in issuing the
restraining order and injunctive writ; that the private
respondents have no clear, positive right to be protected by
an injunction; that the CHR abused its discretion in
entertaining the private respondent's complaint because the
issue raised therein had been decided by this Court, hence,
it is barred by prior judgment.
On September 19, 1991, this Court issued a temporary
restraining order, ordering the CHR to cease and desist
from enforcing and/or implementing the questioned
injunction orders.
In its comment on the petition, the CHR asked for the
immediate lifting of this Court's restraining order, and for an
order restraining petitioner EPZA from doing further acts of
destruction and harassment. The CHR contends that its
principal function under Section 18, Art. 13 of the 1987
Constitution, "is not limited to mere investigation" because
it is mandated, among others, to:
a. Investigate, on its own or on complaint
by any party, all forms of human rights
violations involving civil and political rights;
b. Adopt its operational guidelines and
rules of procedure, and cite for contempt
for violations thereof in accordance with the
Rules of Court;
c. Provide appropriate legal measures for
the protection of human rights of all
persons within the Philippines, as well as
Filipinos residing abroad, and provide for
preventive measures and legal aid
services to the under privileged whose
human rights have been violated or need
protection;
d. Monitor the Philippine Government's
compliance with international treaty
obligations on human rights. (Emphasis
supplied.) (p. 45, Rollo)
On November 14, 1991, the Solicitor General filed a
Manifestation and Motion praying that he be excused from
filing a Comment for the CHR on the ground that the
Comment filed by the latter "fully traversed and squarely
met all the issues raised and discussed in the main Petition
for Certiorari and Prohibition" (p. 83, Rollo).
Does the CHR have jurisdiction to issue a writ of injunction
or restraining order against supposed violators of human
rights, to compel them to cease and desist from continuing
the acts complained of?
In Hon. Isidro Cariño, et al. vs. Commission on Human
Rights, et al., G.R No. 96681, December 2, 1991, we held
that the CHR is not a court of justice nor even a quasi-
judicial body.
The most that may be conceded to the
Commission in the way of adjudicative
power is that it may investigate, i.e.,
receive evidence and make findings of fact
as regards claimed human rights violations
 involving civil and political rights. But fact-
finding is not adjudication, and cannot be
likened to thejudicial function of a court of
justice, or even a quasi-judicial agency or
official. The function of receiving evidence
and ascertaining therefrom the facts of a
controversy is not a judicial function,
properly speaking. To be considered such,
the faculty of receiving evidence and
making factual conclusions in a which the CHR may seek from the proper courts on behalf
controversy must be accompanied by the
authority of applying the law to those
factual conclusions to the end that the
controversy may be decided or determined
authoritatively, finally and definitely,
subject to such appeals or modes of review
as may be provided by law. This function,
to repeat, the Commission does not have.
xxx xxx xxx
Hence it is that the Commission on Human
Rights, having merely the power "to
investigate," cannot and should not "try and
resolve on the merits" (adjudicate) the
matters involved in Striking Teachers HRC
Case No. 90-775, as it has announced it
means to do; and it cannot do so even if
there be a claim that in the administrative
disciplinary proceedings against the
teachers in question, initiated and
conducted by the DECS, their human
rights, or civil or political rights had been
transgressed. More particularly, the
Commission has no power to "resolve on
the merits" the question of (a) whether or
not the mass concerted actions engaged in
by the teachers constitute a strike and are
prohibited or otherwise restricted by
law; (b) whether or not the act of carrying
on and taking part in those actions, and the
failure of the teachers to discontinue those
actions and return to their classes despite
the order to this effect by the Secretary of
Education, constitute infractions of relevant
rules and regulations warranting
administrative disciplinary sanctions, or are
justified by the grievances complained of
by them; and (c) what were the particular
acts done by each individual teacher and
what sanctions, if any, may properly be
imposed for said acts or omissions. (pp. 5
& 8.)
The constitutional provision directing the CHR to "provide
for preventive measures and legal aid services to the
underprivileged whose human rights have been violated or
need protection" may not be construed to confer jurisdiction
on the Commission to issue a restraining order or writ of
injunction for, if that were the intention, the Constitution
would have expressly said so. "Jurisdiction is conferred only
by the Constitution or by law" (Oroso, Jr. vs. Court of
Appeals, G.R. Nos. 76828-32, 28 January 1991; Bacalso
vs. Ramolete, G.R. No. L-22488, 26 October 1967, 21
SCRA 519). It is never derived by implication (Garcia, et al.
vs. De Jesus, et al., G.R. No. 88158; Tobon Uy vs.
Commission on Election, et al.. G.R. Nos. 97108-09, March
4, 1992).
Evidently, the "preventive measures and legal aid services"
mentioned in the Constitution refer to extrajudicial and
judicial remedies (including a preliminary writ of injunction)
of the victims of human rights violations. Not being a court
of justice, the CHR itself has no jurisdiction to issue the writ,
for a writ of preliminary injunction may only be issued "by
the judge of any court in which the action is pending [within
his district], or by a Justice of the Court of Appeals, or of the
Supreme Court. It may also be granted by the judge of a
Court of First Instance [now Regional Trial Court] in any
action pending in an inferior court within his district." (Sec.
2, Rule 58, Rules of Court). A writ of preliminary injunction
is an ancillary remedy. It is available only in a pending
principal action, for the preservation or protection of the
rights and interest of a party thereto, and for no other
purpose
WHEREFORE, the petition for certiorari and prohibition is
GRANTED. The orders of injunction dated May 17 and 28,
1991 issued by the respondent Commission on Human
Right are here by ANNULLED and SET ASIDE and the
temporary restraining order which this Court issued on
September 19, 1991, is hereby made PERMANENT.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Bidin, Medialdea, Regalado, Devide,
Jr., Romero and Nocon, JJ., concur.
Feliciano and Bellosillo, JJ., are on leave.
Separate Opinions
PADILLA, J., concurring:
I dissent for the reasons stated in my separate opinion
in Hon. Isidro Carino, et al. vs. Commission on Human
Rights, et al., G. R. No. 96681, 2 December 1991. In
addition, it is my considered view that the CHR has the
unquestioned authority in appropriate cases to "provide for
preventive measures and legal aid services to the under
privileged whose human rights have been violated or need
protection." (Section 18(c), Article XIII, 1987 Constitution)
If the CHR can not, by itself, issue any cease and desist
order in order to maintain the status quo pending its
investigation of cases involving alleged human rights
violations, then it is, in effect, an ineffective instrument for
the protection of human rights. I submit that the CHR,
consistent with the intent of the framers of the 1987
Constitution, may issue cease and desist orders particularly
in situations involving a threatened violation of human
rights, which it intends to investigate, and such cease and
desist orders may be judicially challenged like the orders of 4) G.R. No. 127685 July 23, 1998
the other constitutional commissions, — which are not
courts of law — under Rule 65 of the Rules of Court, on BLAS F. OPLE, petitioner,
grounds of lack or excess of jurisdiction or grave abuse of
discretion.
vs.

ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings
(investigation).
Separate Opinions
PADILLA, J., concurring:
I dissent for the reasons stated in my separate opinion
in Hon. Isidro Carino, et al. vs. Commission on Human
Rights, et al., G. R. No. 96681, 2 December 1991. In
addition, it is my considered view that the CHR has the
unquestioned authority in appropriate cases to "provide for
preventive measures and legal aid services to the under
privileged whose human rights have been violated or need
protection." (Section 18(c), Article XIII, 1987 Constitution)
If the CHR can not, by itself, issue any cease and desist
order in order to maintain the status quo pending its
investigation of cases involving alleged human rights
violations, then it is, in effect, an ineffective instrument for
the protection of human rights. I submit that the CHR,
consistent with the intent of the framers of the 1987
Constitution, may issue cease and desist orders particularly
in situations involving a threatened violation of human
rights, which it intends to investigate, and such cease and
desist orders may be judicially challenged like the orders of
the other constitutional commissions, — which are not
courts of law — under Rule 65 of the Rules of Court, on
grounds of lack or excess of jurisdiction or grave abuse of
discretion.
ACCORDINGLY, I vote to DISMISS the petition and to
remand the case to the CHR for further proceedings
(investigation).
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR
VILLANUEVA, CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE
NATIONAL COMPUTER CENTER and CHAIRMAN OF
THE COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of
Senator Blas F. Ople to prevent the shrinking of the right to
privacy, which the revered Mr. Justice Brandeis considered
as "the most comprehensive of rights and the right most
valued by civilized men." 1 Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification
Reference System" on two important constitutional
grounds, viz: one, it is a usurpation of the power of
Congress to legislate, and two, it impermissibly
intrudes on our citizenry's protected zone of privacy.
We grant the petition for the rights sought to be
vindicated by the petitioner need stronger barriers
against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos
On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL
COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide
Filipino citizens and foreign residents
with the facility to conveniently transact
business with basic service and social
security providers and other
government instrumentalities;

WHEREAS, this will require a

computerized system to properly and
efficiently identify persons seeking
basic services on social security and
reduce, if not totally eradicate
fraudulent transactions and
misrepresentations;

WHEREAS, a concerted and

collaborative effort among the various
basic services and social security
providing agencies and other
government intrumentalities is required
to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS,
President of the Republic of the
Philippines, by virtue of the powers
vested in me by law, do hereby direct
the following:
Sec. 1. Establishment of a National
Compoterized Identification Reference
System. A decentralized Identification
Reference System among the key basic
services and social security providers
is hereby established.
Sec. 2. Inter-Agency Coordinating
Committee. An Inter-Agency
Coordinating Committee (IACC) to
draw-up the implementing guidelines
and oversee the implementation of the
System is hereby created, chaired by
the Executive Secretary, with the
following as members:
Head, Presidential Management Staff
Secretary, National Economic
Development Authority
Secretary, Department of the Interior
and Local Government
Secretary, Department of Health
Administrator, Government Service
Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer
Center.
Sec. 3. Secretariat. The National
Computer Center (NCC) is hereby
designated as secretariat to the IACC
and as such shall provide
administrative and technical support to
the IACC.
Sec. 4. Linkage Among Agencies. The
Population Reference Number (PRN)
generated by the NSO shall serve as the
common reference number to establish
a linkage among concerned agencies.
The IACC Secretariat shall coordinate
with the different Social Security and
Services Agencies to establish the
standards in the use of Biometrics
Technology and in computer
application designs of their respective
systems.
Sec. 5. Conduct of Information
Dissemination Campaign. The Office of
the Press Secretary, in coordination
with the National Statistics Office, the
GSIS and SSS as lead agencies and
other concerned agencies shall
undertake a massive tri-media
information dissemination campaign to
educate and raise public awareness on
the importance and use of the PRN and
the Social Security Identification
Reference.
Sec. 6. Funding. The funds necessary
for the implementation of the system
shall be sourced from the respective
budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports.
The NSO, GSIS and SSS shall submit
regular reports to the Office of the
President through the IACC, on the
status of implementation of this
undertaking.
Sec. 8. Effectivity. This Administrative
Order shall take effect immediately.
DONE in the City of Manila, this 12th day
of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of
general circulation on January 22, 1997 and January 23,
1997. On January 24, 1997, petitioner filed the instant
petition against respondents, then Executive Secretary
Ruben Torres and the heads of the government
agencies, who as members of the Inter-Agency
Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we
issued a temporary restraining order enjoining its
implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A
NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
REQUIRES A LEGISLATIVE ACT. THE
ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF
THE LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF THE
PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC
FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS
 AN UNCONSTITUTIONAL USURPATION
OF THE EXCLUSIVE RIGHT OF
CONGRESS TO APPROPRIATE PUBLIC
FUNDS FOR EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO.
308 INSIDIOUSLY LAYS THE
GROUNDWORK FOR A SYSTEM WHICH
WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A
JUSTICIABLE CASE AS WOULD
WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED
WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING
ON THE LEGISLATIVE POWERS OF
CONGRESS;
C. THE FUNDS NECESSARY FOR THE
IMPLEMENTATION OF THE
IDENTIFICATION REFERENCE SYSTEM
MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN
INDIVIDUAL'S INTEREST IN PRIVACY. 3
We now resolve.
I Hence, the exercise by one branch of government of
As is usual in constitutional litigation, respondents
raise the threshold issues relating to the standing to
sue of the petitioner and the justiciability of the case at
bar. More specifically, respondents aver that petitioner
has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be
promulgated.
These submissions do not deserve our sympathetic
ear. Petitioner Ople is a distinguished member of our
Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that
the issuance of A.O. No. 308 is a usurpation of
legislative power. 4 As taxpayer and member of the
Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the
misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is
not affected by the fact that the implementing rules of
A.O. No. 308 have yet to be promulgated. Petitioner
Ople assails A.O. No. 308 as invalid per se and as
infirmed on its face. His action is not premature for the
rules yet to be promulgated cannot cure its fatal
defects. Moreover, the respondents themselves have
started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of the
National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS have
completed the guidelines for the national identification
system. 7 All signals from the respondents show their
unswerving will to implement A.O. No. 308 and we need
not wait for the formality of the rules to pass judgment
on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a
commendable stance as its result would be to throttle
an important constitutional principle and a
fundamental right.
II
We now come to the core issues. Petitioner claims that
A.O. No. 308 is not a mere administrative order but a
law and hence, beyond the power of the President to
issue. He alleges that A.O. No. 308 establishes a system
of identification that is all-encompassing in scope,
affects the life and liberty of every Filipino citizen and
foreign resident, and more particularly, violates their
right to privacy.
Petitioner's sedulous concern for the Executive not to
trespass on the lawmaking domain of Congress is
understandable. The blurring of the demarcation line
between the power of the Legislature to make laws and
the power of the Executive to execute laws will disturb
their delicate balance of power and cannot be allowed.
power belonging to another will be given a stricter
scrutiny by this Court.
The line that delineates Legislative and Executive
power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to
alter and repeal them." 8 The Constitution, as the will of
the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the
Philippines. 9 The grant of legislative power to
Congress is broad, general and comprehensive. 10 The
legislative body possesses plenary power for all
purposes of civil government. 11 Any power, deemed to
be legislative by usage and tradition, is necessarily
possessed by Congress, unless the Constitution has
lodged it elsewhere. 12 In fine, except as limited by the
Constitution, either expressly or impliedly, legislative
power embraces all subjects and extends to matters of
general concern or common interest. 13
While Congress is vested with the power to enact laws,
the President executes the laws. 14 The executive
power is vested in the Presidents. 15 It is generally
defined as the power to enforce and administer the
laws. 16 It is the power of carrying the laws into practical
operation and enforcing their due observance. 17
As head of the Executive Department, the President is
the Chief Executive. He represents the government as
a whole and sees to it that all laws are enforced by the
officials and employees of his department. 18 He has
control over the executive department, bureaus and
offices. This means that he has the authority to assume
directly the functions of the executive department,
bureau and office or interfere with the discretion of its
officials.19 Corollary to the power of control, the
President also has the duty of supervising the
enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted
administrative power over bureaus and offices under
his control to enable him to discharge his duties
effectively. 20
Administrative power is concerned with the work of
applying policies and enforcing orders as determined
by proper governmental organs. 21 It enables the
President to fix a uniform standard of administrative
efficiency and check the official conduct of his
agents. 22 To this end, he can issue administrative
orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No.
308 involves a subject that is not appropriate to be
covered by an administrative order. An administrative
order is:
Sec. 3. Administrative Orders. — Acts of
the President which relate to particular
aspects of governmental operation in
pursuance of his duties as
administrative head shall be
promulgated in administrative orders. 23
An administrative order is an ordinance issued
by the President which relates to specific
aspects in the administrative operation of
government. It must be in harmony with the law
and should be for the sole purpose of
implementing the law and carrying out the
legislative policy. 24 We reject the argument that
A.O. No. 308 implements the legislative policy
of the Administrative Code of 1987. The Code is
a general law and "incorporates in a unified
document the major structural, functional and
procedural principles of governance." 25 and
"embodies changes in administrative structure
and procedures designed to serve the
people." 26 The Code is divided into seven (7)
Books: Book I deals with Sovereignty and
General Administration, Book II with the
Distribution of Powers of the three branches of
Government, Book III on the Office of the
President, Book IV on the Executive Branch,
Book V on Constitutional Commissions, Book
VI on National Government Budgeting, and
Book VII on Administrative Procedure. These
Books contain provisions on the organization,
powers and general administration of the
executive, legislative and judicial branches of
government, the organization and
administration of departments, bureaus and
offices under the executive branch, the
organization and functions of the
Constitutional Commissions and other
constitutional bodies, the rules on the national
government budget, as well as guideline for the
exercise by administrative agencies of quasi-
legislative and quasi-judicial powers. The Code
covers both the internal administration of
government, i.e, internal organization,
personnel and recruitment, supervision and
discipline, and the effects of the functions
performed by administrative officials on private
individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308
merely implements the Administrative Code of 1987. It
establishes for the first time a National Computerized
Identification Reference System. Such a System
requires a delicate adjustment of various contending
state policies — the primacy of national security, the
extent of privacy interest against dossier-gathering by
government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No.
308 involves the all-important freedom of thought. As
said administrative order redefines the parameters of
some basic rights of our citizenry vis-a-vis the State as
well as the line that separates the administrative power
of the President to make rules and the legislative power
of Congress, it ought to be evident that it deals with a
subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D.
No. 308 is not a law because it confers no right,
imposes no duty, affords no proctection, and creates
no office. Under A.O. No. 308, a citizen cannot transact
business with government agencies delivering basic
services to the people without the contemplated
identification card. No citizen will refuse to get this
identification card for no one can avoid dealing with
government. It is thus clear as daylight that without the
ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and imposes
no duty cannot stand.
Again, with due respect, the dissenting opinions
unduly expand the limits of administrative legislation
and consequently erodes the plenary power of
Congress to make laws. This is contrary to the
established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: ". .
. Many regulations however, bear directly on the public.
It is here that administrative legislation must he
restricted in its scope and application. Regulations are
not supposed to be a substitute for the general policy-
making that Congress enacts in the form of a public
law. Although administrative regulations are entitled to
respect, the authority to prescribe rules and
regulations is not an independent source of power to
make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the
subject of a law, still it cannot pass constitutional
muster as an administrative legislation because facially
it violates the right to privacy. The essence of privacy
is the "right to be let alone." 29 In the 1965 case of
Griswold v. Connecticut, 30 the United States Supreme
Court gave more substance to the right of privacy when
it ruled that the right has a constitutional foundation. It
held that there is a right of privacy which can be found
within the penumbras of the First, Third, Fourth, Fifth
and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights
have penumbras formed by emanations
from these guarantees that help give
them life and substance . . . various
guarantees create zones of privacy. The
right of association contained in the
penumbra of the First Amendment is
one, as we have seen. The Third
Amendment in its prohibition against
the quartering of soldiers "in any
house" in time of peace without the
consent of the owner is another facet of
that privacy. The Fourth Amendment
explicitly affirms the ''right of the people
to be secure in their persons, houses
and effects, against unreasonable
searches and seizures." The Fifth
Amendment in its Self-Incrimination
Clause enables the citizen to create a
zone of privacy which government may
not force him to surrender to his
detriment. The Ninth Amendment
provides: "The enumeration in the
Constitution, of certain rights, shall not
be construed to deny or disparage
others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we
adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru
Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a
Connecticut statute which made the use
of contraceptives a criminal offence on
the ground of its amounting to an
unconstitutional invasion of the right of
privacy of married persons; rightfully it
stressed "a relationship lying within the
zone of privacy created by several
fundamental constitutional
guarantees." It has wider implications
though. The constitutional right to
privacy has come into its own.
So it is likewise in our jurisdiction. The
right to privacy as such is accorded
recognition independently of its
identification with liberty; in itself, it is
fully deserving of constitutional
protection. The language of Prof.
Emerson is particularly apt: "The
concept of limited government has
always included the idea that
governmental powers stop short of
certain intrusions into the personal life
of the citizen. This is indeed one of the
basic distinctions between absolute
and limited government. Ultimate and
pervasive control of the individual, in all
aspects of his life, is the hallmark of the
absolute state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it from
the public sector, which the state can
control. Protection of this private sector
— protection, in other words, of the
dignity and integrity of the individual —
has become increasingly important as
modern society has developed. All the
forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow the
area of privacy and facilitate intrusion
into it. In modern terms, the capacity to
maintain and support this enclave of
private life marks the difference
between a democratic and a totalitarian
society."
Indeed, if we extend our judicial gaze we will find that
the right of privacy is recognized and enshrined in
several provisions of our Constitution. 33 It is expressly
recognized in section 3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of
communication and correspondence
shall be inviolable except upon lawful
order of the court, or when public safety
or order requires otherwise as
prescribed by law.
Other facets of the right to privacy are protectad
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.
xxx xxx xxx
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.
xxx xxx xxx
Sec. 8. The right of the people, including
those employed in the public and
private sectors, to form unions,
associations, or societies for purposes
not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled
to be a witness against himself.
Zones of privacy are likewise recognized and protected
in our laws. The Civil Code provides that "[e]very
person shall respect the dignity, personality, privacy
and peace of mind of his neighbors and other persons"
and punishes as actionable torts several acts by a
person of meddling and prying into the privacy of
another. 35 It also holds a public officer or employee or
any private individual liable for damages for any
violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and
other private communications. 37 The Revised Penal
Code makes a crime the violation of secrets by an
officer, 38the revelation of trade and industrial
secrets, 39 and trespass to dwelling. 40 Invasion of
privacy is an offense in special laws like the Anti-
Wiretapping Law, 41 the Secrecy of Bank Deposits
Act 42 and the Intellectual Property Code. 43 The Rules
of Court on privileged communication likewise
recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise
that the right to privacy is a fundamental right
guaranteed by the Constitution, hence, it is the burden
of government to show that A.O. No. 308 is justified by
some compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two
considerations: (1) the need to provides our citizens
and foreigners with the facility to conveniently transact
business with basic service and social security
providers and other government instrumentalities and
(2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by
persons seeking basic services. It is debatable whether
these interests are compelling enough to warrant the
issuance of A.O. No. 308. But what is not arguable is
the broadness, the vagueness, the overbreadth of A.O.
No. 308 which if implemented will put our people's right
to privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which
provides for a Population Reference Number (PRN) as
a "common reference number to establish a linkage
among concerned agencies" through the use of
"Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the applicatin
of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The term
"biometrics" has evolved into a broad category of
technologies which provide precise confirmation of an
individual's identity through the use of the individual's
own physiological and behavioral characteristics. 46 A
physiological characteristic is a relatively stable
physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral
characteristic is influenced by the individual's
personality and includes voice print, signature and
keystroke. 47 Most biometric idenfication systems use
a card or personal identificatin number (PIN) for initial
identification. The biometric measurement is used to
verify that the individual holding the card or entering
the PIN is the legitimate owner of the card or PIN. 48
A most common form of biological encoding is finger-
scanning where technology scans a fingertip and turns
the unique pattern therein into an individual number
which is called a biocrypt. The biocrypt is stored in
computer data banks 49 and becomes a means of
identifying an individual using a service. This
technology requires one's fingertip to be scanned
every time service or access is provided. 50 Another
method is the retinal scan. Retinal scan technology
employs optical technology to map the capillary pattern
of the retina of the eye. This technology produces a
unique print similar to a finger print. 51 Another
biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of
substances excreted from the skin of people. 52 The
latest on the list of biometric achievements is the
thermogram. Scientists have found that by taking
pictures of a face using infra-red cameras, a unique
heat distribution pattern is seen. The different densities
of bone, skin, fat and blood vessels all contribute to the
individual's personal "heat signature." 53
In the last few decades, technology has progressed at
a galloping rate. Some science fictions are now science
facts. Today, biometrics is no longer limited to the use
of fingerprint to identify an individual. It is a new
science that uses various technologies in encoding
any and all biological characteristics of an individual
for identification. It is noteworthy that A.O. No. 308
does not state what specific biological characteristics
and what particular biometrics technology shall be
used to identify people who will seek its coverage.
Considering the banquest of options available to the
implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a
further look will show that it does not state whether
encoding of data is limited to biological information
alone for identification purposes. In fact, the Solicitor
General claims that the adoption of the Identification
Reference System will contribute to the "generation of
population data for development planning." 54 This is
an admission that the PRN will not be used solely for
identification but the generation of other data with
remote relation to the avowed purposes of A.O. No. 308.
Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve
information for a purpose other than the identification
of the individual through his PRN.
The potential for misuse of the data to be gathered
under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative order,
an individual must present his PRN everytime he deals
with a government agency to avail of basic services
and security. His transactions with the government
agency will necessarily be recorded — whether it be in
the computer or in the documentary file of the agency.
The individual's file may include his transactions for
loan availments, income tax returns, statement of
assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the
PRN, the better the chance of building a huge
formidable informatin base through the electronic
linkage of the files. 55 The data may be gathered for
gainful and useful government purposes; but the
existence of this vast reservoir of personal information
constitutes a covert invitation to misuse, a temptation
that may be too great for some of our authorities to
resist. 56
We can even grant, arguendo, that the computer data
file will be limited to the name, address and other basic
personal infomation about the individual. 57 Even that
hospitable assumption will not save A.O. No. 308 from
constitutional infirmity for again said order does not tell
us in clear and categorical terms how these information
gathered shall he handled. It does not provide who
shall control and access the data, under what
circumstances and for what purpose. These factors are
essential to safeguard the privacy and guaranty the
integrity of the information. 58 Well to note, the
computer linkage gives other government agencies
access to the information. Yet, there are no controls to
guard against leakage of information. When the access
code of the control programs of the particular computer
system is broken, an intruder, without fear of sanction
or penalty, can make use of the data for whatever
purpose, or worse, manipulate the data stored within
the system. 59
It is plain and we hold that A.O. No. 308 falls short of
assuring that personal information which will be
gathered about our people will only be processed for
unequivocally specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308 may interfere
with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it
may also enable unscrupulous persons to access
confidential information and circumvent the right
against self-incrimination; it may pave the way for
"fishing expeditions" by government authorities and
evade the right against unreasonable searches and
seizures. 61 The possibilities of abuse and misuse of
the PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks
control over what can be read or placed on his ID, much
less verify the correctness of the data encoded. 62 They
threaten the very abuses that the Bill of Rights seeks to
prevent. 63
The ability of sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is one
of the most graphic threats of the computer
revolution. 64 The computer is capable of producing a
comprehensive dossier on individuals out of
information given at different times and for varied
purposes. 65 It can continue adding to the stored data
and keeping the information up to date. Retrieval of
stored date is simple. When information of a privileged
character finds its way into the computer, it can be
extracted together with other data on the
subject. 66Once extracted, the information is putty in
the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly
drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role
as the ultimate guardian of the people's liberty if it
would not immediately smother the sparks that
endanger their rights but would rather wait for the fire
that could consume them.
We reject the argument of the Solicitor General that an
individual has a reasonable expectation of privacy with
regard to the Natioal ID and the use of biometrics
technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy
depends on a two-part test: (1) whether by his conduct,
the individual has exhibited an expectation of privacy;
and (2) whether this expectation is one that society
recognizes as reasonable. 67 The factual circumstances
of the case determines the reasonableness of the
expectation. 68 However, other factors, such as
customs, physical surroundings and practices of a
particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer
technology in A.O. No. 308 does not assure the
individual of a reasonable expectation of privacy. 70 As
technology advances, the level of reasonably expected
privacy decreases. 71 The measure of protection
granted by the reasonable expectation diminishes as
relevant technology becomes more widely
accepted. 72 The security of the computer data file
depends not only on the physical inaccessibility of the
file but also on the advances in hardware and software
computer technology. A.O. No. 308 is so widely drawn
that a minimum standard for a reasonable expectation
of privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be by the IACC cannot
remedy this fatal defect. Rules and regulations merely
implement the policy of the law or order. On its face,
A.O. No. gives the IACC virtually infettered discretion
to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards
for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the disclosure
by any person of data furnished by the individual to the
NSO with imprisonment and fine. 73 Republic Act. No.
1161 prohibits public disclosure of SSS employment
records and reports. 74 These laws, however, apply to
records and data with the NSO and the SSS. It is not
clear whether they may be applied to data with the other
government agencies forming part of the National ID
System. The need to clarify the penal aspect of A.O. No.
308 is another reason why its enactment should be
given to Congress.
Next, the Solicitor General urges us to validate A.O. No.
308's abridgment of the right of privacy by using the
rational relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to streamline and
speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of
services, and (3) generate population data for
development planning. He cocludes that these
purposes justify the incursions into the right to privacy
for the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v.
Mutuc, 77 we upheld the constitutionality of R.A. 3019,
the Anti-Graft and Corrupt Practices Act, as a valid
police power measure. We declared that the law, in
compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of
income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to
promote morality in public administration by curtailing
and minimizing the opportunities for official corruption
and maintaining a standard of honesty in the public
service. 78
The same circumstances do not obtain in the case at
bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what practices
were prohibited and penalized, and it was narrowly
drawn to avoid abuses. IN the case at bar, A.O. No. 308
may have been impelled by a worthy purpose, but, it
cannot pass constitutional scrutiny for it is not
narrowly drawn. And we now hod that when the
integrity of a fundamental right is at stake, this court
will give the challenged law, administrative order, rule
or regulation a stricter scrutiny. It will not do for the
authorities to invoke the presumption of regularity in
the performance of official duties. Nor is it enough for
the authorities to prove that their act is not irrational for
a basic right can be diminished, if not defeated, even
when the government does not act irrationally. They
must satisfactorily show the presence of compelling
state interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach is
demanded by the 1987 Constitution whose entire
matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least we
can do is to lean towards the stance that will not put in
danger the rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor
General is also off-line. In Whalen, the United States
Supreme Court was presented with the question of
whether the State of New York could keep a centralized
computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a
doctor's prescription. The New York State Controlled
Substance Act of 1972 required physicians to identify
parties obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but
with a potential for abuse, so that the names and
addresses of the patients can be recorded in a
centralized computer file of the State Department of
Health. The plaintiffs, who were patients and doctors,
claimed that some people might decline necessary
medication because of their fear that the computerized
data may be readily available and open to public
disclosure; and that once disclosed, it may stigmatize
them as drug addicts. 80 The plaintiffs alleged that the
statute invaded a constitutionally protected zone of
privacy, i.e., the individual interest in avoiding
disclosure of personal matters, and the interest in
independence in making certain kinds of important
decisions. The U.S. Supreme Court held that while an
individual's interest in avoiding disclosuer of personal
matter is an aspect of the right to privacy, the statute
did not pose a grievous threat to establish a
constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous drugs.
The patient-identification requirement was a product of
an orderly and rational legislative decision made upon
recommmendation by a specially appointed
commission which held extensive hearings on the
matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of
the informatin. It ebumerated who were authorized to
access the data. It also prohibited public disclosure of
the data by imposing penalties for its violation. In view
of these safeguards, the infringement of the patients'
right to privacy was justified by a valid exercise of
police power. As we discussed above, A.O. No. 308
lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out in
neon that the Court is not per se agains the use of
computers to accumulate, store, process, retvieve and
transmit data to improve our bureaucracy. Computers
work wonders to achieve the efficiency which both
government and private industry seek. Many
information system in different countries make use of
the computer to facilitate important social objective,
such as better law enforcement, faster delivery of
public services, more efficient management of credit
and insurance programs, improvement of
telecommunications and streamlining of financial
activities. 81 Used wisely, data stored in the computer
could help good administration by making accurate
and comprehensive information for those who have to
frame policy and make key decisions. 82 The benefits of
the computer has revolutionized information
technology. It developed the internet, 83 introduced the
concept of cyberspace 84 and the information
superhighway where the individual, armed only with his
personal computer, may surf and search all kinds and
classes of information from libraries and databases
connected to the net.
In no uncertain terms, we also underscore that the right
to privacy does not bar all incursions into individual
privacy. The right is not intended to stifle scientific and
technological advancements that enhance public
service and the common good. It merely requires that
the law be narrowly focused 85 and a compelling
interest justify such intrusions. 86 Intrusions into the
right must be accompanied by proper safeguards and
well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that
invades individual privacy will be subjected by this
Court to strict scrutiny. The reason for this stance was
laid down in Morfe v. Mutuc, to wit:
The concept of limited government has
always included the idea that
governmental powers stop short of
certain intrusions into the personal life
of the citizen. This is indeed one of the
basic disctinctions between absolute
and limited government. Ultimate and
pervasive control of the individual, in all
aspects of his life, is the hallmark of the
absolute state. In contrast, a system of
limited government safeguards a
private sector, which belongs to the
individual, firmly distinguishing it from
the public sector, which the state can
control. Protection of this private sector
— protection, in other words, of the
dignity and integrity of the individual —
has become increasingly important as
modern society has developed. All the
forces of a technological age —
industrialization, urbanization, and
organization — operate to narrow the
area of privacy and facilitate intrusion
into it. In modern terms, the capacity to
maintain and support this enclave of
private life marks the difference
between a democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most threatened rights
of man living in a mass society. The threats emanate
from various sources — governments, journalists,
employers, social scientists, etc. 88 In th 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.
IN VIEW WHEREOF, the petition is granted and
Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference
System" declared null and void for being
unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and Mendoza in
their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr. Justice
Panganiban in his separate opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices Kapunan and
Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate Opinion.
Quisumbing, J., I join in dissenting opinion of JJ.
Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's dissenting.
Separate Opinions
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics,
man is a rational being, one who is endowed with
intellect which allows him to apply reasoned judgment
to problems at hand; he has the innate spiritual faculty
which can tell, not only what is right but, as well, what
is moral and ethical. Because of his sensibilities,
emotions and feelings, he likewise possesses a sense
of shame. In varying degrees as dictated by diverse
cultures, he erects a wall between himself and the
outside world wherein he can retreat in solitude,
protecting himself from prying eyes and ears and their
extensions, whether form individuals, or much later,
from authoritarian intrusions.
Piercing through the mists of time, we find the original
Man and Woman defying the injunction of God by
eating of the forbidden fruit in the Garden. And when
their eyes were "opened" forthwith "they sewed fig
leaves together, and made themselves aprons." 1 Down
the corridors of time, we find man fashioning "fig
leaves" of sorts or setting up figurative walls, the better
to insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone,"
considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of
among beasts. Different branches of science, have
made their own studies of this craving of the human
spirit — psychological, anthropological sociological
and philosophical, with the legal finally giving its
imprimatur by elevating it to the status ofa right,
specifically a private right.
Initially recognized as an aspect of tort law, it created
giant waves in legal circles with the publication in the
Harvard Law Review 2 of the trail-blazing article, "The
Right to Privacy," by Samuel D. Warren and Louis D.
Brandeis.
Whether viewed as a personal or a property right, it
found its way in Philippine Constitutions and statutes;
this, in spite of the fact that Philippine culture can
hardly be said to provide a fertile field for the
burgeoning of said right. In fact, our lexicographers
have yet to coin a word for it in the Filipino language.
Customs and practices, being what they have always
been, Filipinos think it perfectly natural and in good
taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be
convinced that what passes for wholesome
entertainment is actually an invasion into one's private
life, leaving the interviewee embarrassed and outraged
by turns.
With the overarching influence of common law and the
recent advent of the Information Age with its high-tech
devices, the right to privacy has expanded to embrace
its public law aspect. The Bill of Rights of our evolving
Charters, a direct transplant from that of the United
States, contains in essence facets of the right to
privacy which constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law such as
Administrative Order No. 308 in making inroads into the
private lives of the citizens, a virtual Big Brother
looking over our shoulder, that it must, without delay,
be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed by my
esteemed colleague, Mr. Justice Reynato S. Puno,
echoing that of the petitioner, the Honorable Blas F.
Ople, on the issuance of Administrative Order No. 308
by the President of the Philippines and the dangers its
implementation could bring. I find it hard, nevertheless,
to peremptorily assume at this time that the
administrative order will be misused and to thereby
ignore the possible benefits that can be derived from,
or the merits of, a nationwide computerized
identification reference system. The great strides and
swift advances in technology render it inescapable that
one day we will, at all events, have to face up with the
reality of seeing extremely sophisticated methods of
personal identification and any attempt to stop the
inevitable may either be short-lived or even futile. The
imperatives, I believe, would instead be to now install
specific safeguards and control measures that may be
calculated best to ward-off probable ill effects of any
such device. Here, it may be apropos to recall the
pronouncement of this Court in People vs.
Nazario 1 that —
As a rule, a statute or [an] act may be
said to be vague when it lacks
comprehensible standards that men "of
common intelligence must necessarily
guess at its meaning and differ as to its
application." It is repugnant to the
Constitution in two respects: (1) it
violates due process for failure to
accord persons, especially the parties
targeted by it, fair notice of the conduct
 to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its
provisions and becomes an arbitrary
flexing of the Government muscle. 2
Administrative Order No. 308 appears to be so
extensively drawn that could, indeed, allow
unbridled options to become available to its
implementors beyond the reasonable comfort
of the citizens and of residents alike.
Prescinding from the foregoing, and most importantly
to this instance, the subject covered by the questioned
administrative order can have far-reaching
consequences that can tell on all individuals, their
liberty and privacy, that, to my mind, should make it
indispensable and appropriate to have the matter
specifically addressed by the Congress of the
Philippines, the policy-making body of our
government, to which the task should initially belong
and to which the authority to formulate and promulgate
that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of
Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the
Executive.
PANGANIBAN, J., separate opinion;
I concur only in the result and only on the ground that
an executive issuance is not legally sufficient to
establish an all-encompassing computerized system of
identification in the country. The subject matter
contained in AO 308 is beyond the powers of the
President to regulate without a legislative enactment.
I reserve judgmeht on the issue of wherher a national
ID system is an infringement of the constitutional right
to privacy or the freedom of thought until after
Congress passes, if ever, a law to this effect. Only then,
and upon the filing of a proper petition, may the
provisions of the statute be scrutinized by the judiciary
to determine their constitutional foundation. Until such
time, the issue is premature; and any decision thereon,
speculative and academic. 1
Be that as it may, the scholarly discussions of Justices
Romero, Puno, Kapunan and Mendoza on the
constitutional right to privacy and freedom of thought
may stil become useful guides to our lawmakers, when
and if Congress should deliberate on a bill establishing
a national identification system.
Let it be noted that this Court, as shown by the voting
of the justices, has not definitively ruled on these
points. The voting is decisive only on the need for the
appropriate legislation, and it is only on this ground
that the petition is granted by this Court.
KAPUNAN, J., dissenting opinion;
The pioneering efforts of the executive to adopt a
national computerized identification reference system
has met fierce opposition. It has spun dark predictions
of sinister government ploys to tamper with the
citizen's right to privacy and ominous forecasts of a
return to authoritarianism. Lost in the uproar, however,
is the simple fact that there is nothing in the whole
breadth and lenght of Administrative Order No. 308 that
suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12
December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308
ADOPTION OF A NATIONAL
COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide
Filipino citizens and foreign residents
with the facility to conveniently transact
business with basic services and social
security providers and other
government instrumentalities;
WHEREAS, this will require a
computerized system to properly and
efficiently identify persons seeking
basic services and social security and
reduce, if not totally eradicate,
fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and
collaborative effort among the various
basic services and social security
providing agencies and other
government instrumentalities is
required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS,
President of the Repubic of the
Philippines, by virtue of the powers
vested in me by law, do hereby direct
the following:
Sec. 1 Establishment of a National
Computerized Identification Reference
System. A decentralized Identification
Reference System among the key basic
services and social security providers
is hereby established.
Sec. 2. Inter-Agency Coordinating
Committee. An Inter-Agency
 Coordinating Committee (IACC) to
draw-up the implementing guidelines
and oversee the implementation of the
System is hereby created, chaired by
the Executive Secretary, with the
following as members:
Head Presidential Management Staff
Secretary, National
Economic Development Authority
Secretary, Department of the Interior and Local
Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
Managing Director, National Computer Center
Sec. 3. Secretariat. The National Computer Center
(NCC) is hereby designated as secretariat to the IACC
and as such shall provide administrative and technical
support to the IACC.
Sec. 4. Linkage Among Agencies. The Population
Reference Number (PRN) generated by the NSO shall
serve as the common reference number to establish a
linkage among concerned agencies. The IACC
Secretariat shall coordinate with the different Social
Security and Services Agencies to establish the
standards in the use of Biometrics Technology and in
computer application designs of their respective
systems.
Sec. 5. Conduct of Information Dissemination
Campaign. The Office of the Press Secretary, in
coordination with the National Statistics Offices, the
GSIS and SSS as lead agencies and other concerned
agencies shall undertake a massive tri-media
information dissemination campaign to educate and
raise public awareness on the importance and use of
the PRN and the Social Security Identification
Reference.
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS
and SSS shall submit regular reports to the Office of
the President, through the IACC, on the status of
implementation of this undertaking.
Sec. 8 Effectivity. This Administartive Order shall take
effect immediately.
DONE in the City of Manila, this 12th day of December
in the year of Our Lord, Nineteen Hundred and Ninety-
Six.
In seeking to strike down A.O. No. 308 as
unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE
ISSUACE 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.
The National Computerized Identification Reference
system to which the NSO, GSIS and SSS are linked as
lead members of the IACC is intended to establish
uniform standards for ID cards isssued by key
government agencies (like the SSS) 1 for the "efficient
identification of persons." 2 Under the new system,
only one reliable and tamper-proof I.D. need be
presented by the cardholder instead of several
identification papers such as passports and driver's
license, 3 to able to transact with government agencies.
The improved ID can be used to facilitate public
transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport,
marriage license, death certificate, NBI and police
clearances, and business permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
5. Application for work/employment
6. Pre-requisite for Voter's ID. 4
The card may also be used for private transactions
such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power,
telephones, pagers, etc.
4. Purchase of stocks
5. Application for work/employment
6. Insurance claims
5
7. Receipt of payments, checks, letters, valuables, etc.
The new identification system would tremendously
improve and uplift public service in our country to the
benefit of Filipino citizens and resident aliens. It would
promote, facilitate and speed up legitimate
transactions with government offices as well as with
private and business entities. Experience tells us of the
constant delays and inconveniences the public has to
suffer in availing of basic public services and social
security benefits because of inefficient and not too
reliable means of identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and
Administrative Order No. 308" issued by the SSS, a lead
agency in the implementation of the said order, the
following salient features are mentioned:
1. A.O. 308 merely establishes the standards for I.D.
cards issued by key government agencies such as SSS
and GSIS.
2. It does not establish a national I.D. system neither
does it require a national I.D. card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any
government service. Everyone has the right to basic
government services as long as he is qualified under
existing laws.
5. The LD. cannot and will not in any way be used to
prevent one to travel.
6. There will be no discrimination Non-holders of the
improved I.D. are still entitled to the same services but
will be subjected to the usual rigid identification and
verification beforehand.
I
The issue that must first be hurdled is: was the
issuance of A.O. No. 308 an exercise by the President
of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally
vested the President with quasi-legislative powers in
the form of executive orders, administrative orders,
proclamations, memorandum orders and circulars and
general or special orders. 6 An administrative order,
like the one under which the new identification system
is embodied, has its peculiar meaning under the 1987
Administrative Code:
Sec. 3. Administrative Orders. — Acts of
the President which relate to particular
aspects of governmental operations in
pursuance of his duties as
administrative head shall be
promulgated in administrative orders.
The National Computerized Identification Reference
System was established pursuant to the aforaquoted
provision precisely because its principal purpose, as
expressly stated in the order, is to provide the people
with "the facility to conveniently transact business"
with the various government agencies providing basic
services. Being the "administrative head," it is
unquestionably the responsibility of the President to
find ways and means to improve the government
bureaucracy, and make it more professional, efficient
and reliable, specially those government agencies and
instrumentalities which provide basic services and
which the citizenry constantly transact with, like the
Government Service Insurance System (GSIS), Social
Security System (SSS) and National Statistics Office
(NSO). The national computerized ID system is one
such advancement. To emphasize, the new
identification reference system is created to streamline
the bureaucracy, cut the red tape and ultimately
achieve administrative efficiency. The project,
therefore, relates to, is an appropriate subject and falls
squarely within the ambit of the Chief Executive's
administrative power under which, in order to
successfully carry out his administrative duties, he has
been granted by law quasi-legislative powers, quoted
above.
Understandably, strict adherence to the doctrine of
separation of power spawns differences of opinion. For
we cannot divide the branches of government into
water-tight compartment. Even if such is possible, it is
neither desirable nor feasible. Bernard Schwartz, in his
work Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation
of powers as carrying out the
distinction between legislation and
administration with mathematical
 precision and as dividing the branches
of government into watertight
compartments, we would probably have
to conclude that any exercise of
lawmaking authority by an agency is
automatically invalid. Such a rigorous
application of the constitutional
doctrine is neither desirable nor
feasible; the only absolute separation
that has ever been possible was that in
the theoretical writings of a
Montesquieu, who looked across at
foggy England from his sunny Gascon
vineyards and completely
misconstrued what he saw. 7
A mingling of powers among the three branches of
government is not a novel concept. This blending of
powers has become necessary to properly address the
complexities brought about by a rapidly developing
society and which the traditional branches of
government have difficulty coping with. 8
It has been said that:
The true meaning of the general
doctrine of the separation of powers
seems to be that the whole power of one
department should not be exercised by
the same hands which possess the
whole power of either of the other
department, and that no one
department ought to possess directly or
indirectly an overruling influence over
the others. And it has been that this
doctrine should be applied only to the
powers which because of their nature
are assigned by the constitution itself to
one of the departments exclusively.
Hence, it does not necessarily follow
that an entire and complete separation
is either desirable of was ever intended,
for such a complete separation would
be impracticable if not impossible;
there may be-and frequently are-areas
in which executive, legislative, and
judicial powers blend or overlap; and
many officers whose duties cannot be
exclusively placed under any one of
these heads.
The courts have perceived the
necessity of avoiding a narrow
construction of a state constitutional
provision for the division of the powers
of the government into three distinct
departments, for it is impractical to view
the provision from the standpoint of a
doctrinaire. Thus, the modern view of
separation of powers rejects the
metaphysical abstractions and reverts
instead to more pragmatic, flexible,
functional approach, giving recognition
to the fact that then may be a certain
degree of blending or admixture of the
three powers of the government.
Moreover, the doctrine of separation of
powers has never been strictly or rigidly
applied, and indeed could not be, to all
the ramifications of state or national
governments; government would prove
abortive if it were attempted to follow
the policy of separation to the letter. 9
In any case A.O. No. 308 was promulgated by the
President pursuant to the quasi-legislative powers
expressly granted to him by law and in accordance with
his duty as administrative head. Hence, the contention
that the President usurped the legislative prerogatives
of Congress has no firm basis.
II
Having resolved that the President has the authority
and prerogative to issue A.O. No. 308, I submit that it is
premature for the Court to determine the
constitutionality or unconstitutionality of the National
Computerized Identification Reference System.
Basic in constitutional law is the rule that before the
court assumes jurisdiction over and decide
constitutional issues, the following requisites must
first be satisfied:
1) there must be an actual case or controversy
involving a conflict of rights susceptible of judicial
determination;
2) the constitutional question must be raised by a
proper party;
3) the constitutional question must be raised at the
earliest opportunity; and
4) the resolution of the constitutional question must be
necessary to the resolution of the case. 10
In this case, it is evident that the first element is
missing. Judicial intervention calls for an actual case
or controversy which is defined as "an existing case or
controversy that is appropriate or ripe for
determination, not conjectural or
anticipatory." 11 Justice Isagani A. Cruz further
expounds that "(a) justifiable controversy is thus
distinguished from a difference or dispute of a
hypothetical or abstract character or from one that is
academic or moot. The controversy must be definite
and concrete, touching the legal relations of parties
having adverse legal interests. It must be a real and
substantial controversy admitting of special relief
through a decree that is conclusive in character, as
distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. . . ." 12 A.O.
No. 308 does not create any concrete or substantial
controversy. It provides the general framework of the
National Computerized Identification Reference
System and lays down the basic standards (efficiency,
convenience and prevention of fraudulent
transactions) for its cretion. But as manifestly indicated
in the subject order, it is the Inter-Agency Coordinating
Committee (IACC) which is tasked to research, study
and formulate the guidelines and parameters for the
use of Biometrics Technology and in computer
application designs that will and define give substance
to the new system. 13 This petition is, thus, premature
considering that the IACC is still in the process of doing
the leg work and has yet to codify and formalize the
details of the new system.
The majority opines that the petition is ripe for
adjudication even without the promulgation of the
necessary guidelines in view of the fact that
respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in
newspapers the invitation to bid for the production of
the I.D. cards. 14
I beg to disagree. It is not the new system itself that is
intended to be implemented in the invitation to bid but
only the manufacture of the I.D. cards. Biometrics
Technology is not and cannot be used in the I.D. cards
as no guidelines therefor have yet been laid down by
the IACC. Before the assailed system can be set up, it
is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal
contention for invalidating the new identification
reference system — that it is an impermissible
encroachment on the constitutionally recognized right
to privacy — is plainly groundless. There is nothing in
A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates
the right to privacy. Said order simply provides the
system's general framework. Without the concomitant
guidelines, which would spell out in detail how this new
identification system would work, the perceived
violation of the right to privacy amounts to nothing
more than mere surmise and speculation.
What has caused much of the hysteria over the National
Computerized Identification Reference System is the
possible utilization of Biometrics Technology which
refers to the use of autnomated matching of
physiological or behavioral characteristics to identify a
person that would violated the citizen's constitutionally
protected right to privacy.
The majority opinion has enumerated various forms
and methods of Biometrics Technology which if
adopted in the National Computaized Identification
Reference System would seriously threaten the right to
privacy. Among which are biocrypt retinal scan,
artificial nose and thermogram. The majority also
points to certain alleged deficiencies of A O. No. 308.
Thus:
1) A.O. No. 308 does not specify the
particular Biometrics Technology that
shall be used for the new identification
system.
2) The order dots not state whether
encoding of data is limited to biological
information alone for identification
purposes;
3) There is no provision as to who shall
control and access the data, under what
circumstances and for what purpose;
and
4) There are no controls to guard
against leakage of information, thus
heightening the potential for misuse
and abuse.
We should not be overwhelmed by the mere mention of
the Biometrics Technology and its alleged, yet
unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to
suggest that the advanced methods of the Biometrics
Technology that may pose danger to the right of
privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of
the new system are clear-cut and unequivocably
spelled out in the "WHEREASES" and body of the
order, namely, the need to provide citizens and foreign
residents with the facility to conveniently transact
business with basic service and social
security providers and other government
instrumentalities; the computerized system is intended
to properly and efficientlyidentify persons
seeking basic services or social security and reduce, if
not totally eradicate fraudulent transactions and
misreprentation; the national identification reference
system is established among the key basic services
and social security providers; and finally, the IACC
Secretariat shall coordinate with different Social
Security and Services Agencies to establish
the standards in the use of Biometrics Technology.
Consequently, the choice of the particular form and
extent of Biometrics Technology that will be applied
and the parameters for its use (as will be defined in the
guidelines) will necessarily and logically be guided,
limited and circumscribed by the afore-stated
standards. The fear entertained by the majority on the
potential dangers of this new technology is thus
securedly allayed by the specific limitations set by the
above-mentioned standards. More than this, the right
to privacy is well-esconced in and directly protected by
various provisions of the Bill of Rights, the Civil Code,
the Revised Penal Code, and certain laws, all so
painstakingly and resourcefully catalogued in the
majority opinion. Many of these laws provide penalties
for their violation in the form of imprisonment, fines, or
damages. These laws will serve as powerful deterrents
not only in the establishment of any administrative rule
that will violate the constitutionally protected right to
privacy, but also to would-be transgressors of such
right.
Relevant to this case is the ruling of the U.S. Supreme
Court in Whalen v. Roe. 15 In that case, a New York
statute was challenged for requiring physicians to
identify patients obtaining prescription drugs of the
statute's "Schedule II" category (a class of drugs
having a potential for abuse and a recognized medical
use) so the names and addresses of the prescription
drug patients can be recorded in a centralized
computer file maintained by the New York State
Department of Health. Some patients regularly
receiving prescription for "Schedule II" drugs and
doctors who prescribed such drugs brought an action
questioning the validity of the statute on the ground
that it violated the plaintiffs' constitutionally protected
rights of privacy.
In a unanimous decision, the US Supreme Court
sustained the validity of the statute on the ground that
the patient identification requirement is a reasonable
exercise of the State's broad police powers. The Court
also held that there is no support in the record for an
assumption that the security provisions of the statute
will be adiministered improperly. Finally, the Court
opined that the remote possibility that judicial
supervision of the evidentiary use of particular items of
stored information will not provide adequate protection
against unwarranted diclosures is not a sufficient
reason for invalidating the patient-identification
program.
To be sure, there is always a possibility of an
unwarranted disclosure of confidential matters
enomously accumulated in computerized data banks
and in government records relating to taxes, public
health, social security benefits, military affairs, and
similar matters. But as previously pointed out, we have
a sufficient number of laws prohibiting and punishing
any such unwarranted disclosures. Anent this matter,
the observation in Whalen vs. Roe is instructive:
. . . We are not unaware of the threat to
privacy implicit in the accumulation of
vast amounts of personal information in
computerized data banks or other
massive government files. The
collection of taxes, the distribution of
welfare and social security benefits, the
supervision of public health, the
direction of our Armed Forces and the
enforcement of the criminal laws all
require the orderly preservation of great
quantities of information, much of
which is personal in character and
potentially embarrassing or harmful if
disclosed. The right to collect and use
such data for public purposes is
typically accompanied by a
concomitant statutory or regulatory
duty to avoid unwarranted disclosures.
. . . 16
The majority laments that as technology advances, the
level of reasonably expected privacy decreases. That
may be true. However, court should tread daintily on
the field of social and economic experimentation lest
they impede or obstruct the march of technology to
improve public services just on the basis of an
unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words
of Mr. Justice Brandeis:
To stay experimentation in things social
and economic is a grave responsibility.
Denial of the right to experiment may be
fraught with serious consequences to
the Nation. It is one of the happy
incidents of the federal system that a
single courageous State may, if its
citizens choose, serve as a laboratory;
and try novel social and economic
experiments without risk to the rest of
the country. This Court has the power to
prevent an experiment. We may strike
down the statute which embodies it on
the ground that, in our opinion, the
measure is arbitary, capricious or
unreaonable. We have power to do this,
because the due process clause has
been held by he Court applicable to
matters of substantive law as well as to
matters of procedure. But in the
exercise of this high power, we must be
ever on our guard, lest we erect our
prejudices into legal principles. If we
would guide by the light of reason, we
must let our minds be bold. 17
Again, the concerns of the majority are premature
precisely because there are as yet no guidelines that
will direct the Court and serve as solid basis for
determining the constitutionality of the new
identification system. The Court cannot and should not
anticipate the constitutional issues and rule on the
basis of guesswok. The guidelines would, among
others, determine the particular biometrics method that
would be used and the specific personal data that
would be collected provide the safeguard, (if any) and
supply the details on how this new system in supposed
to work. The Court should not jump the gun on the
Executive.
III
On the issue of funding, the majority submits that
Section 6 of A.O. No. 308, which allows the government
agencies included in the new system to obtain funding
form their respective budgets, is unconstitutional for
being an illegal transfer of appropriations.
It is not so. The budget for the national identification
system cannot be deemed a transfer of funds since the
same is composed of and will be implemented by the
member government agancies. Morever, thses
agencies particularly the GSIS and SSS have been
issuing some form of identification or membership
card. The improved ID cards that will be issued under
this new system would just take place of the old
identification cards and budget-wise, the funds that
were being used to manufacture the old ID cards, which
are usually accounted for under the "Supplies and
Materials" item of the Government Accounting and
Auditing Manual, could now be utilized to fund the new
cards. Hence, what is envisioned is not transfer of
appropriations but a pooling of funds and resources by
the various government agencies involved in the
project.
WHEREFORE, I vote to dismiss the petition.
MENDOZA, J., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative
Order No. 308 of the President of the Philippines that
would warrant a declaration that it is violative of the
right of privacy. So far as I can see, all the
Administrative Orders does is
• establish an Identification Reference System
involving the following service agencies of the
government:
º Presidential Management Staff
º National Economic Developemnt Authority
º Department of the Interior and Local Government
º Department of Health
º Government Service Isurance System
º Social Security Office
º National Computer Center
• create a committee, composed of the heads of the
agencies concerned, to draft rules for the System;
• direct the use of the Population Reference Number
(PRN) generated by the National Census and Statistics
Office as the common reference number to link the
participating agencies into an Identification Reference
System, and the adoption by the agencies of standards
in the use of biometrics technology and computer
designs; and
• provide for the funding of the
System from the budgets of the
agencies concerned.
Petitioner argues, however, that "the implementation of
A.O. No. 308 will mean that each and every Filipino and
resident will have a file with the government containing,
at the very least, his PRN and physiological biometrics
such as, but not limited to, his facial features, hand
geometry, retinal or iris pattern, DNA pattern,
fingerprints, voice characteristics, and signature
analysis."
In support of his contention, petitioner quotes the
following publication surfed from the Internet:
The use of biometrics is the means by
which an individual may be
conclusively identified. There are two
types of biometrics identifiers; Physical
and behavioral characteristics,
Physiological biometrics include facial
features, hand geometry, retinal and iris
patterns. DNA, and fingerprints
characteristics include voice
characteristics and signature
analysis. 1
I do not see how from the bare provisions of the Order,
the full text of which is set forth in the majority opinion,
petitioner and the majority can conclude that the
Identification Reference System establishes such
comprehensive personal information dossiers that can
destroy individual privacy. So far as the Order
provides, all that is contemplated is an identification
system based on data which the government agencies
involved have already been requiring individuals
making use of their services to give.
For example, under C.A. No. 591, §2(a) the National
Statistics Office collects "by enumeration, sampling or
other methods, statistics and other information
concerning population . . . social and economic
institutions, and such other statistics as the President
may direct." In addition, it is in charge of the
administration of the Civil Register, 2 which means that
it keeps records of information concerning the civil
status of persons, i.e., (a) births, (b) deaths, (c)
marriages and their annulments; (d) legitimations, (e)
adoptions, (f) acknowledgments of natural children, (g)
naturalizations, and (h) changes of name. 3
Other statutes giving government agencies the power
to require personal information may be cited. R.A. No.
4136, §23 gives the Land Transportation Office the
power to require applicants for a driver's license to give
information regarding the following: their full names,
date of birth, height, weight, sex, color of eyes, blood
type, address, and right thumbprint; 4 while R.A. No.
8239, §5 gives the Department of Foreign Affairs the
power to require passport applicants to give
information concerning their names, place of birth, date
of birth, religious affiliation, marital status, and
citizenship.
Justice Romero, tracing the origin of privacy to the
attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that
technology and institutional pressures have threatened
our sense of privacy. On the other hand, the majority
would have none of the Identification Reference
System "to prevent the shrinking of the right to privacy,
once regarded as "the most comprehensive of rights
and the right most valued by civilized men."" 5 Indeed,
techniques such as fingerprinting or electronic
photography in banks have become commonplace. As
has been observed, the teaching hospital has come to
be accepted as offering madical services that
compensate for the loss of the isolation of the sickbed;
the increased capacity of applied sciences to utilize
more and more kinds of data and the cosequent calls
for such data have weakened traditional resistance to
disclosure. As the area of relevance, political or
scientific, expands, there is strong psychological
pressure to yield some ground of privacy. 6
But this is a fact of life to which we must adjust, as long
as the intrusion into the domain of privacy is
reasonable. In Morfe v. Mutuc, 7 this Court dealt
the coup de grace to claims of latitudinarian scope for
the right of privacy by quoting the pungent remark of
an acute observer of the social scene, Carmen
Guerrero-Nakpil:
Privacy? What's that? There is no
precise word for it in Filipino, and as far
as I know any Filipino dialect and there
is none because there is no need for it.
The concept and practice of privacy are
missing from conventional Filipino life.
The Filipino believes that privacy is an
unnecessary imposition, an eccentricity
that is barely pardonable or, at best, an
esoteric Western afterthought
smacking of legal trickery. 8
Justice Romero herself says in her separate
opinion that the word privacy is not even in the
lexicon of Filipinos.
As to whether the right of privacy is "the most valued
right," we do well to remember the encomiums paid as
well to other constitutional rights. For Professor
Zechariah Chafee, "The writ of habeas corpus is "the
most important human rights provision in the
fundamental law,""9 For Justice Cardozo, on the other
hand, freedom of expression "is the matrix, the
indispensable condition of nearly every other form of
freedom." 10
The point is that care must be taken in assigning values
to constitutional rights for the purpose of calibrating
them on the judicial scale, especially if this means
employing stricter standards of review for regulations
alleged to infringe certain rights deemed to be "most
valued by civilized men.''
Indeed, the majority concedes that "the right of privacy
does not bar all incursions into individual privacy . . .
[only that such] incursions into the right must be
accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions." 11 In
the case of the Identification Reference System, the
purpose is to facilitate the transaction of business with
service agencies of the government and to prevent
fraud and misrepresentation. The personal
identification of an individual can facilitate his
treatment in any government hospital in case of
emergency. On the other hand, the delivery of material
assistance, such as free medicines, can be protected
from fraud or misrepresentation as the absence of a
data base makes it possible for unscrupulous
individuals to obtain assistance from more than one
government agency.
Second. Thus, the issue in this case is not really
whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional
rights cited by the majority. 12 The question is whether
it violates freedom of thought and of conscience
guaranteed in the following provisions of our Bill of
Rights (Art. III):
Sec. 4. No law Shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right
of the people peaceably to assemble
and petition the government for redress
of grievances.
Sec. 5. No law shall be made respecting
an establishment of religion, or
prohibiting the free exercise thereof.
The free exercise enjoyment of religious
profession and worship, without
discrimination or preference, shall be
forever be allowed. No religious test
shall be required for the exercise of civil
or political rights.
More specifically, the question is whether the
establishment of the Identification Reference System
will not result in the compilation of massive dossiers
on individuals which, beyond their use for
identification, can become instruments of thought
control. So far, the next of A.O. No. 308 affords no basis
for believing that the data gathered can be used for
such sinister purpose. As already stated, nothing that
is not already being required by the concerned
agencies of those making use of their servides is
required by the Order in question. The Order simply
organizes service agencies of the government into a
System for the purpose of facilitating the identification
of persons seeking basic services and social security.
Thus, the whereas clauses of A.O. No. 308 state:
 WHEREAS, there is a need to provide
Filipino citizens and foreign residents
with the facility to conveniently transact
business with basic services and social
security providers and other
government instrumentalities;
WHEREAS, this will require a determined by the relationship which
computerized system to properly and
efficiently identify persons seeking
basic services and social security, and
reduce, if not totally eradicate,
fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and
collaborative effort among the various
basic services and social security
providing agencies and other
government instrumentalities is
required to achieve such a system:
The application of biometric technology and the
standardization of computer designs can
provide service agencies with precise
identification of individuals, but what is wrong
with that?
Indeed, A.O. No. 308 is no more than a directive to
government agencies which the President of the
Philippines has issued in his capacity as administrative
head. 13 It is not a statute. It confers no right; it imposes
no duty; it affords no protection; it creates no
office. 14 It is, as its name indicates, a mere
administrative order, the prescise nature of which is
given in the following excerpt from the decision in the
early case of Olsen & Co. v. Herstein: 15
[It] is nothing more or less than a
command from a superior to an
inferior. It creates no relation except
between the official who issues it and
the official who receives it. Such orders,
whether executive or departmental,
have for their object simply the efficient
and economical administration of the
affairs of the department to which or in
which they are issued in accordance
with the law governing the subject-
matter. They are administrative in their
nature and do not pass beyond the
limits of the department to which they
are directed or in which they are
published, and, therefore, create no
rights in third persons. They are based
on, and are the product of a relationship
in which power is their source and
obedience their object. Disobedience to
or deviation from such an order can be
punished only by the power which
issued it: and, if that power fails to
administer the corrective, then the
disobedience goes unpunished. In that
relationship no third person or official
may intervene, not even the court. Such
orders may be very temporary, they
being subject to instant revocation or
modification by the power which
published them. Their very nature, as
prodecued them, demonstrates clearly
the impossibility of any other person
enforcing them except the one who
created them. An attempt on the part of
the courts to enforce such orders would
result not only in confusion but,
substantially, in departmental anarchy
also. 16
Third. There is no basis for believing that, beyond the
identification of individuals, the System will be used for
illegal purposes. Nor are sanctions lacking for the
unauthorized use or disclosure of information gathered
by the various agencies constituting the System. For
example, as the Solicitor General points out. C.A. No.
591. §4 penalizes the unauthorized use or disclosure of
data furnished the NSO with a fine of not more than
P600.00 or imprisonment for not more than six months
or both.
At all events, at this stage, it is premature to pass on
the claim that the Identification Reference System can
be used for the purpose of compiling massive dossiers
on individuals that can be used to curtail basic civil and
political rights since, if at all, this can only be provided
in the implementing rules and regulations which have
yet to be promulgated. We have already stated that A.O.
No. 308 is not a statute. Even in the case of statutes,
however, where implementing rules are necessary to
put them into effect, it has been held that an attack on
their constitutionality would be premature. 17 As Edgar
in King Lear puts it, "Ripeness is all." 18For, to borrow
some more Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd. 19
That, more than any doctrine of constitutional law I can
think of, succinctly expresses the rule on ripeness,
prematurity, and hypothetical, speculative, or
conjectural claims.
Of special relevance to this case is Laird v.
Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S.
Army intelligence surveillance of civilian political
activity having "a potential for civil disorder" exercised
"a present inhibiting effect on [respondents'] full
expression and utilization of their First Amendment
rights." In holding the case nonjusticiable, the U.S.
Supreme Court, in an opinion by Chief Justice Burger.
said: 21
 In recent years this Court has found in a
number of cases that constitutional
violations may arise from the deterrent
or ''chilling," effect of governmental
regulations that fall short of a direct
prohibition against the exercise of First
Amendment rights. [Citation of cases
omitted] In none of these cases,
however, did the chilling effect arise
merely from the individual's knowledge
that a governmental agency was
engaged in certain activities or from the
individual's concomitant fear that,
armed with the fruits of those activities,
the agency might in the future take
some other and additional action
detrimental to that individual. Rather, in
each of these cases, the challenged
exercise of governmental power was
regulatory, proscriptive, or compulsory
in nature, and the complainant was
either presently or prospectively
subject to the regulations,
proscriptions, or compulsions that he
was challenging. . . .
[T]hese decisions have in no way
eroded the "established principle that to
entitle a private individual to invoke the
judicial power to determine the validity
of executive or legislative action he
must show that he was sustained or is
immediately in danger of sustaining a
direct injury as the result of that action.
...
The respondents do not meet this test;
[the] alleged "chilling" effect may
perhaps be seen as arising from
respondents' perception of the system
as inappropriate to the Army's role
under our form of government, or as
arising from respondents' beliefs that it
is inherently dangerous for the military
to be concerned with activities in the
civilian sector, or as arising from
respondents' less generalized yet
speculative apprehensiveness that the
Army may at some future date misuse
the information in some way that would
cause direct harm to respondents.
Allegations of a subjective "chill" are
not an adequate substitute for a claim of
specific present objective harm or a
threat of specific future harm: "the
federal courts established pursuant to
Article III of the Constitution do not
render advisory opinions." United
Public Workers v. Mitchell, 330 US 75,
89, 91 L Ed 754, 766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is
involved in this case and that any objection to the
identification Reference System on the ground that it
violates freedom of thought is premature, speculative,
or conjectural pending the issuance of the
implementing rules, it is clear that petitioner Blas F.
Ople has no cause of action and, therefore, no standing
to bring this action. Indeed, although he assails A.O.
No. 308 on the ground that it violates the right of
privacy, he claims no personal injury suffered as a
result of the Order in question. Instead, he says he is
bringing this action as taxpayer, Senator, and member
of the Government Service Insurance System.
Insofar as petitioner claims an interest as taxpayer, it is
sufficient to say that A.O. No. 308 does not involve the
exercise of the taxing or spending power of the
government.
Insofar as he purports to sue as a member of the GSIS,
neither does petitioner have an intertest sufficient to
enable him to litigate a constitutional question.
Petitioner claims that in providing that the funds
necessary for implementing the System shall be taken
from the budgets of the concerned agencies. A.O. No.
308 violates Art. VI, §25(5) which. provides:
No law shall be passed authorizing any
transfer of appropriations; however, the
President, the President of the Senate,
the Speaker of the House of
Representatives, the Chief Justice of
the Supreme Court, and the heads of
Constitutional Commissions may, by
law, be authorized to augment any item
in the general appropriations law for
their respective offices from savings in
other items of their respective
appropriations.
But, as the Solicitor General states:
Petitioner's argument is anchored on
two erroneous assumptions: one, that
all the concerned agencies, including
the SSS and the GSIS, receive
budgetary support from the national
government; and two, that the GAA is
the only law whereby public funds are
appropriated. Both assumptions are
wrong.
The SSS and GSIS do not presently
receive budgetary support from the
National Government. They have
achieved self-supporting status such
that the contributions of their members
are sufficient to finance their expenses.
One would be hard pressed to find in
the GAA an appropriation of funds to
the SSS and the GSIS.
Furthermore, their respective charters
authorize the SSS and the GSIS to
 disburse their funds (Rep. Act No. 1161
[1954], as amended, Sec. 25; Pres.
Decree No. 1146 [1977], as amended,
Sec. 29) without the need for a separate
appropriation from the Congress.
Nor as Senator can petitioner claim standing since no
power of Congress is alleged to have been impaired by
the Administrative Order in question. 22 As already
stated, in issuing A.O. No. 308, the President did not
exercise the legislative power vested by the
Constitution in Congress. He acted on the basis of his
own powers as administrative head of the government,
as distinguished from his capacity as the Executive.
Dean Sinco elucidates the crucial distinction thus:
The Constitution of the Philippines
makes the President not only the
executive but also the administrative
head of the government. . . . Executive
power refers to the legal and political
function of the President involving the
exercise of discretion. Administrative
power, on the other hand, concerns
itself with the work of applying policies
and enforcing orders as determined by
proper governmental organs. These two
functions are often confused by the
public: but they are distinct from each
other. The President as the executive
authority has the duty of supervising
the enforcement of laws for the
maintenance of general peace and
public order. As administrative head,
his duty is to see that every government
office is managed and maintained
properly by the persons in charge of it
in accordance with pertinent laws and
regulations.
. . . The power of control vested in him
by the Constitution makes for a strongly
centralized administrative system. It
reinforces further his position as the
executive of the government, enabling
him to comply more effectively with his
constitutional duty to enforce the
laws. It enables him to fix a uniform
standard of a administrative eficiency
and to check the official conduct of his
agents. The decisions of all the officers
within his department are subject to his
power of revision, either on his own
motion or on the appeal of some
individual who might deem himself
aggrieved by the action of an
administrative official. In case of
serious dereliction of duty, he may
suspend or remove the officials
concerned. 23
For the foregoing reasons, the petition should be
DISMISSED.
Separate Opinions
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical characteristics,
man is a rational being, one who is endowed with
intellect which allows him to apply reasoned judgment
to problems at hand; he has the innate spiritual faculty
which can tell, not only what is right but, as well, what
is moral and ethical. Because of his sensibilities,
emotions and feelings, he likewise possesses a sense
of shame. In varying degrees as dictated by diverse
cultures, he erects a wall between himself and the
outside world wherein he can retreat in solitude,
protecting himself from prying eyes and ears and their
extensions, whether form individuals, or much later,
from authoritarian intrusions.
Piercing through the mists of time, we find the original
Man and Woman defying the injunction of God by
eating of the forbidden fruit in the Garden. And when
their eyes were "opened" forthwith "they sewed fig
leaves together, and made themselves aprons." 1 Down
the corridors of time, we find man fashioning "fig
leaves" of sorts or setting up figurative walls, the better
to insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone,"
considered "anti-social" by some, led to the
development of the concept of "privacy," unheard of
among beasts. Different branches of science, have
made their own studies of this craving of the human
spirit — psychological, anthropological sociological
and philosophical, with the legal finally giving its
imprimatur by elevating it to the status ofa right,
specifically a private right.
Initially recognized as an aspect of tort law, it created
giant waves in legal circles with the publication in the
Harvard Law Review 2 of the trail-blazing article, "The
Right to Privacy," by Samuel D. Warren and Louis D.
Brandeis.
Whether viewed as a personal or a property right, it
found its way in Philippine Constitutions and statutes;
this, in spite of the fact that Philippine culture can
hardly be said to provide a fertile field for the
burgeoning of said right. In fact, our lexicographers
have yet to coin a word for it in the Filipino language.
Customs and practices, being what they have always
been, Filipinos think it perfectly natural and in good
taste to inquire into each other's intimate affairs.
One has only to sit through a televised talk show to be
convinced that what passes for wholesome
entertainment is actually an invasion into one's private
life, leaving the interviewee embarrassed and outraged
by turns.
With the overarching influence of common law and the
recent advent of the Information Age with its high-tech
devices, the right to privacy has expanded to embrace
its public law aspect. The Bill of Rights of our evolving
Charters, a direct transplant from that of the United
States, contains in essence facets of the right to
privacy which constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law such as
Administrative Order No. 308 in making inroads into the
private lives of the citizens, a virtual Big Brother
looking over our shoulder, that it must, without delay,
be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed by my
esteemed colleague, Mr. Justice Reynato S. Puno,
echoing that of the petitioner, the Honorable Blas F.
Ople, on the issuance of Administrative Order No. 308
by the President of the Philippines and the dangers its
implementation could bring. I find it hard, nevertheless,
to peremptorily assume at this time that the
administrative order will be misused and to thereby
ignore the possible benefits that can be derived from,
or the merits of, a nationwide computerized
identification reference system. The great strides and
swift advances in technology render it inescapable that
one day we will, at all events, have to face up with the
reality of seeing extremely sophisticated methods of
personal identification and any attempt to stop the
inevitable may either be short-lived or even futile. The
imperatives, I believe, would instead be to now install
specific safeguards and control measures that may be
calculated best to ward-off probable ill effects of any
such device. Here, it may be apropos to recall the
pronouncement of this Court in People vs.
Nazario 1 that —
As a rule, a statute or [an] act may be
said to be vague when it lacks
comprehensible standards that men "of
common intelligence must necessarily
guess at its meaning and differ as to its
application." It is repugnant to the
Constitution in two respects: (1) it
violates due process for failure to
accord persons, especially the parties
targeted by it, fair notice of the conduct
to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its
provisions and becomes an arbitrary
flexing of the Government muscle. 2
Administrative Order No. 308 appears to be so
extensively drawn that could, indeed, allow
unbridled options to become available to its
implementors beyond the reasonable comfort
of the citizens and of residents alike.
Prescinding from the foregoing, and most importantly
to this instance, the subject covered by the questioned
administrative order can have far-reaching
consequences that can tell on all individuals, their
liberty and privacy, that, to my mind, should make it
indispensable and appropriate to have the matter
specifically addressed by the Congress of the
Philippines, the policy-making body of our
government, to which the task should initially belong
and to which the authority to formulate and promulgate
that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of
Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the
Executive.
PANGANIBAN, J., separate opinion;
I concur only in the result and only on the ground that
an executive issuance is not legally sufficient to
establish an all-encompassing computerized system of
identification in the country. The subject matter
contained in AO 308 is beyond the powers of the
President to regulate without a legislative enactment.
I reserve judgmeht on the issue of wherher a national
ID system is an infringement of the constitutional right
to privacy or the freedom of thought until after
Congress passes, if ever, a law to this effect. Only then,
and upon the filing of a proper petition, may the
provisions of the statute be scrutinized by the judiciary
to determine their constitutional foundation. Until such
time, the issue is premature; and any decision thereon,
speculative and academic. 1
Be that as it may, the scholarly discussions of Justices
Romero, Puno, Kapunan and Mendoza on the
constitutional right to privacy and freedom of thought
may stil become useful guides to our lawmakers, when
and if Congress should deliberate on a bill establishing
a national identification system.
Let it be noted that this Court, as shown by the voting
of the justices, has not definitively ruled on these
points. The voting is decisive only on the need for the
appropriate legislation, and it is only on this ground
that the petition is granted by this Court.
KAPUNAN, J., dissenting opinion;
The pioneering efforts of the executive to adopt a
national computerized identification reference system
has met fierce opposition. It has spun dark predictions
of sinister government ploys to tamper with the
citizen's right to privacy and ominous forecasts of a
return to authoritarianism. Lost in the uproar, however,
is the simple fact that there is nothing in the whole
breadth and lenght of Administrative Order No. 308 that
suggests a taint constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12
December 1996 reads:
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System

ADMTNISTRATIVE ORDER NO. 308 Administrator, National Statistics Office

ADOPTION OF A NATIONAL Managing Director, National Computer Center

COMPUTERIZED
Sec. 3. Secretariat. The National Computer Center
IDENTIFICATION REFERENCE SYSTEM (NCC) is hereby designated as secretariat to the IACC
and as such shall provide administrative and technical
WHEREAS, there is a need to provide support to the IACC.
Filipino citizens and foreign residents
with the facility to conveniently transact Sec. 4. Linkage Among Agencies. The Population
business with basic services and social Reference Number (PRN) generated by the NSO shall
security providers and other serve as the common reference number to establish a
government instrumentalities; linkage among concerned agencies. The IACC
Secretariat shall coordinate with the different Social
WHEREAS, this will require a Security and Services Agencies to establish the
computerized system to properly and standards in the use of Biometrics Technology and in
efficiently identify persons seeking computer application designs of their respective
basic services and social security and systems.
reduce, if not totally eradicate,
fraudulent transactions and Sec. 5. Conduct of Information Dissemination
misrepresentations; Campaign. The Office of the Press Secretary, in
coordination with the National Statistics Offices, the
WHEREAS, a concerted and GSIS and SSS as lead agencies and other concerned
collaborative effort among the various agencies shall undertake a massive tri-media
basic services and social security information dissemination campaign to educate and
providing agencies and other raise public awareness on the importance and use of
government instrumentalities is the PRN and the Social Security Identification
required to achieve such a system; Reference.

NOW, THEREFORE, I, FIDEL V. RAMOS,
President of the Repubic of the
Philippines, by virtue of the powers
vested in me by law, do hereby direct
the following:
Sec. 1 Establishment of a National
Computerized Identification Reference
System. A decentralized Identification
Reference System among the key basic
services and social security providers
is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-
Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the
implementation of the System is hereby created,
chaired by the Executive Secretary, with the following
as members:
Head Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local
Government
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from the
respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS
and SSS shall submit regular reports to the Office of
the President, through the IACC, on the status of
implementation of this undertaking.
Sec. 8 Effectivity. This Administartive Order shall take
effect immediately.
DONE in the City of Manila, this 12th day
of December in the year of Our Lord,
Nineteen Hundred and Ninety-Six.
In seeking to strike down A.O. No. 308 as
unconstitutional, petitioner argues:
A. THE ESTABLISHMENT OF NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE
ISSUACE 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.
The National Computerized Identification Reference
system to which the NSO, GSIS and SSS are linked as
lead members of the IACC is intended to establish
uniform standards for ID cards isssued by key
government agencies (like the SSS) 1 for the "efficient
identification of persons." 2 Under the new system,
only one reliable and tamper-proof I.D. need be
presented by the cardholder instead of several
identification papers such as passports and driver's
license, 3 to able to transact with government agencies.
The improved ID can be used to facilitate public
transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport,
marriage license, death certificate, NBI and police
clearances, and business permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
5. Application for work/employment
4
6. Pre-requisite for Voter's ID.
The card may also be used for private transactions
such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power,
telephones, pagers, etc.
4. Purchase of stocks
5. Application for work/employment
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc.
The new identification system would tremendously
improve and uplift public service in our country to the
benefit of Filipino citizens and resident aliens. It would
promote, facilitate and speed up legitimate
transactions with government offices as well as with
private and business entities. Experience tells us of the
constant delays and inconveniences the public has to
suffer in availing of basic public services and social
security benefits because of inefficient and not too
reliable means of identification of the beneficiaries.
Thus, in the "Primer on the Social Security Card and
Administrative Order No. 308" issued by the SSS, a lead
agency in the implementation of the said order, the
following salient features are mentioned:
1. A.O. 308 merely establishes the standards for I.D.
cards issued by key government agencies such as SSS
and GSIS.
2. It does not establish a national I.D. system neither
does it require a national I.D. card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any
government service. Everyone has the right to basic
government services as long as he is qualified under
existing laws.
5. The LD. cannot and will not in any way be used to
prevent one to travel.
6. There will be no discrimination Non-holders of the
improved I.D. are still entitled to the same services but
will be subjected to the usual rigid identification and
verification beforehand.
I
The issue that must first be hurdled is: was the
issuance of A.O. No. 308 an exercise by the President
of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally
vested the President with quasi-legislative powers in
the form of executive orders, administrative orders,
proclamations, memorandum orders and circulars and
general or special orders. 6 An administrative order,
like the one under which the new identification system
is embodied, has its peculiar meaning under the 1987
Administrative Code:
Sec. 3. Administrative Orders. — Acts of
the President which relate to particular
aspects of governmental operations in
5 pursuance of his duties as
administrative head shall be
promulgated in administrative orders.
The National Computerized Identification Reference
System was established pursuant to the aforaquoted
provision precisely because its principal purpose, as
expressly stated in the order, is to provide the people
with "the facility to conveniently transact business"
with the various government agencies providing basic
services. Being the "administrative head," it is
unquestionably the responsibility of the President to
find ways and means to improve the government
bureaucracy, and make it more professional, efficient
and reliable, specially those government agencies and
instrumentalities which provide basic services and
which the citizenry constantly transact with, like the
Government Service Insurance System (GSIS), Social
Security System (SSS) and National Statistics Office
(NSO). The national computerized ID system is one
such advancement. To emphasize, the new
identification reference system is created to streamline
the bureaucracy, cut the red tape and ultimately
achieve administrative efficiency. The project,
therefore, relates to, is an appropriate subject and falls
squarely within the ambit of the Chief Executive's
administrative power under which, in order to
successfully carry out his administrative duties, he has
been granted by law quasi-legislative powers, quoted
above.
Understandably, strict adherence to the doctrine of
separation of power spawns differences of opinion. For
we cannot divide the branches of government into
water-tight compartment. Even if such is possible, it is
neither desirable nor feasible. Bernard Schwartz, in his
work Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation
of powers as carrying out the
distinction between legislation and
administration with mathematical
precision and as dividing the branches
of government into watertight
compartments, we would probably have
to conclude that any exercise of
lawmaking authority by an agency is
automatically invalid. Such a rigorous
application of the constitutional
doctrine is neither desirable nor
feasible; the only absolute separation
that has ever been possible was that in
the theoretical writings of a
Montesquieu, who looked across at
foggy England from his sunny Gascon
vineyards and completely
misconstrued what he saw. 7
A mingling of powers among the three branches of
government is not a novel concept. This blending of
powers has become necessary to properly address the
complexities brought about by a rapidly developing
society and which the traditional branches of
government have difficulty coping with. 8
It has been said that:
The true meaning of the general
doctrine of the separation of powers
seems to be that the whole power of one
department should not be exercised by
the same hands which possess the
whole power of either of the other
department, and that no one
department ought to possess directly or
indirectly an overruling influence over
the others. And it has been that this
doctrine should be applied only to the
powers which because of their nature
are assigned by the constitution itself to
one of the departments exclusively.
Hence, it does not necessarily follow
that an entire and complete separation
is either desirable of was ever intended,
for such a complete separation would
be impracticable if not impossible;
there may be-and frequently are-areas
in which executive, legislative, and
judicial powers blend or overlap; and
many officers whose duties cannot be
exclusively placed under any one of
these heads.
The courts have perceived the
necessity of avoiding a narrow
construction of a state constitutional
provision for the division of the powers
of the government into three distinct
departments, for it is impractical to view
the provision from the standpoint of a
doctrinaire. Thus, the modern view of
separation of powers rejects the
metaphysical abstractions and reverts
instead to more pragmatic, flexible,
functional approach, giving recognition
to the fact that then may be a certain
degree of blending or admixture of the
three powers of the government.
Moreover, the doctrine of separation of
powers has never been strictly or rigidly
applied, and indeed could not be, to all
the ramifications of state or national
governments; government would prove
abortive if it were attempted to follow
the policy of separation to the letter. 9
In any case A.O. No. 308 was promulgated by the
President pursuant to the quasi-legislative powers
expressly granted to him by law and in accordance with
his duty as administrative head. Hence, the contention
that the President usurped the legislative prerogatives
of Congress has no firm basis.
II
Having resolved that the President has the authority
and prerogative to issue A.O. No. 308, I submit that it is
premature for the Court to determine the
constitutionality or unconstitutionality of the National
Computerized Identification Reference System.
Basic in constitutional law is the rule that before the
court assumes jurisdiction over and decide
constitutional issues, the following requisites must
first be satisfied:
1) there must be an actual case or controversy
involving a conflict of rights susceptible of judicial
determination;
2) the constitutional question must be raised by a
proper party;
3) the constitutional question must be raised at the
earliest opportunity; and
4) the resolution of the constitutional question must be
necessary to the resolution of the case. 10
In this case, it is evident that the first element is
missing. Judicial intervention calls for an actual case
or controversy which is defined as "an existing case or
controversy that is appropriate or ripe for
determination, not conjectural or
anticipatory." 11 Justice Isagani A. Cruz further
expounds that "(a) justifiable controversy is thus
distinguished from a difference or dispute of a
hypothetical or abstract character or from one that is
academic or moot. The controversy must be definite
and concrete, touching the legal relations of parties
having adverse legal interests. It must be a real and
substantial controversy admitting of special relief
through a decree that is conclusive in character, as
distinguished from an opinion advising what the law
would be upon a hypothetical state of facts. . . ." 12 A.O.
No. 308 does not create any concrete or substantial
controversy. It provides the general framework of the
National Computerized Identification Reference
System and lays down the basic standards (efficiency,
convenience and prevention of fraudulent
transactions) for its cretion. But as manifestly indicated
in the subject order, it is the Inter-Agency Coordinating
Committee (IACC) which is tasked to research, study
and formulate the guidelines and parameters for the
use of Biometrics Technology and in computer
application designs that will and define give substance
to the new system. 13 This petition is, thus, premature
considering that the IACC is still in the process of doing
the leg work and has yet to codify and formalize the
details of the new system.
The majority opines that the petition is ripe for
adjudication even without the promulgation of the
necessary guidelines in view of the fact that
respondents have begun implementation of A.O. No.
308. The SSS, in particular, has started advertising in
newspapers the invitation to bid for the production of
the I.D. cards. 14
I beg to disagree. It is not the new system itself that is
intended to be implemented in the invitation to bid but
only the manufacture of the I.D. cards. Biometrics
Technology is not and cannot be used in the I.D. cards
as no guidelines therefor have yet been laid down by
the IACC. Before the assailed system can be set up, it
is imperative that the guidelines be issued first.
III
Without the essential guidelines, the principal
contention for invalidating the new identification
reference system — that it is an impermissible
encroachment on the constitutionally recognized right
to privacy — is plainly groundless. There is nothing in
A.O. No. 308 to serve as sufficient basis for a
conclusion that the new system to be evolved violates
the right to privacy. Said order simply provides the
system's general framework. Without the concomitant
guidelines, which would spell out in detail how this new
identification system would work, the perceived
violation of the right to privacy amounts to nothing
more than mere surmise and speculation.
What has caused much of the hysteria over the National
Computerized Identification Reference System is the
possible utilization of Biometrics Technology which
refers to the use of autnomated matching of
physiological or behavioral characteristics to identify a
person that would violated the citizen's constitutionally
protected right to privacy.
The majority opinion has enumerated various forms
and methods of Biometrics Technology which if
adopted in the National Computaized Identification
Reference System would seriously threaten the right to
privacy. Among which are biocrypt retinal scan,
artificial nose and thermogram. The majority also
points to certain alleged deficiencies of A O. No. 308.
Thus:
1) A.O. No. 308 does not specify the particular
Biometrics Technology that shall be used for the new
identification system.
2) The order dots not state whether encoding of data is
limited to biological information alone for identification
purposes;
3) There is no provision as to who shall control and
access the data, under what circumstances and for
what purpose; and
4) There are no controls to guard against leakage of
information, thus heightening the potential for misuse
and abuse.
We should not be overwhelmed by the mere mention of
the Biometrics Technology and its alleged, yet
unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to
suggest that the advanced methods of the Biometrics
Technology that may pose danger to the right of
privacy will be adopted.
The standards set in A.O. No. 308 for the adoption of
the new system are clear-cut and unequivocably
spelled out in the "WHEREASES" and body of the
order, namely, the need to provide citizens and foreign
residents with the facility to conveniently transact
business with basic service and social
security providers and other government
instrumentalities; the computerized system is intended
to properly and efficientlyidentify persons
seeking basic services or social security and reduce, if
not totally eradicate fraudulent transactions and
misreprentation; the national identification reference
system is established among the key basic services
and social security providers; and finally, the IACC
Secretariat shall coordinate with different Social
Security and Services Agencies to establish
the standards in the use of Biometrics Technology.
Consequently, the choice of the particular form and
extent of Biometrics Technology that will be applied
and the parameters for its use (as will be defined in the
guidelines) will necessarily and logically be guided,
limited and circumscribed by the afore-stated
standards. The fear entertained by the majority on the
potential dangers of this new technology is thus
securedly allayed by the specific limitations set by the
above-mentioned standards. More than this, the right
to privacy is well-esconced in and directly protected by
various provisions of the Bill of Rights, the Civil Code,
the Revised Penal Code, and certain laws, all so
painstakingly and resourcefully catalogued in the
majority opinion. Many of these laws provide penalties
for their violation in the form of imprisonment, fines, or
damages. These laws will serve as powerful deterrents
not only in the establishment of any administrative rule
that will violate the constitutionally protected right to
privacy, but also to would-be transgressors of such
right.
Relevant to this case is the ruling of the U.S. Supreme
Court in Whalen v. Roe. 15 In that case, a New York
statute was challenged for requiring physicians to
identify patients obtaining prescription drugs of the
statute's "Schedule II" category (a class of drugs
having a potential for abuse and a recognized medical
use) so the names and addresses of the prescription
drug patients can be recorded in a centralized
computer file maintained by the New York State
Department of Health. Some patients regularly
receiving prescription for "Schedule II" drugs and
doctors who prescribed such drugs brought an action
questioning the validity of the statute on the ground
that it violated the plaintiffs' constitutionally protected
rights of privacy.
In a unanimous decision, the US Supreme Court
sustained the validity of the statute on the ground that
the patient identification requirement is a reasonable
exercise of the State's broad police powers. The Court
also held that there is no support in the record for an
assumption that the security provisions of the statute
will be adiministered improperly. Finally, the Court
opined that the remote possibility that judicial
supervision of the evidentiary use of particular items of
stored information will not provide adequate protection
against unwarranted diclosures is not a sufficient
reason for invalidating the patient-identification
program.
To be sure, there is always a possibility of an
unwarranted disclosure of confidential matters
enomously accumulated in computerized data banks
and in government records relating to taxes, public
health, social security benefits, military affairs, and
similar matters. But as previously pointed out, we have
a sufficient number of laws prohibiting and punishing
any such unwarranted disclosures. Anent this matter,
the observation in Whalen vs. Roe is instructive:
. . . We are not unaware of the threat to
privacy implicit in the accumulation of
vast amounts of personal information in
computerized data banks or other
massive government files. The
collection of taxes, the distribution of
welfare and social security benefits, the
supervision of public health, the
direction of our Armed Forces and the
enforcement of the criminal laws all
require the orderly preservation of great
quantities of information, much of
which is personal in character and
potentially embarrassing or harmful if
disclosed. The right to collect and use
such data for public purposes is
typically accompanied by a
concomitant statutory or regulatory
duty to avoid unwarranted disclosures.
. . . 16
The majority laments that as technology advances, the
level of reasonably expected privacy decreases. That
may be true. However, court should tread daintily on
the field of social and economic experimentation lest
they impede or obstruct the march of technology to
improve public services just on the basis of an
unfounded fear that the experimentation violates one's
constitutionally protected rights. In the sobering words
of Mr. Justice Brandeis:
To stay experimentation in things social
and economic is a grave responsibility.
Denial of the right to experiment may be
fraught with serious consequences to
the Nation. It is one of the happy
incidents of the federal system that a
single courageous State may, if its
citizens choose, serve as a laboratory;
and try novel social and economic
experiments without risk to the rest of
the country. This Court has the power to
prevent an experiment. We may strike
down the statute which embodies it on
the ground that, in our opinion, the
measure is arbitary, capricious or
unreaonable. We have power to do this,
because the due process clause has
 been held by he Court applicable to
matters of substantive law as well as to
matters of procedure. But in the
exercise of this high power, we must be
ever on our guard, lest we erect our
prejudices into legal principles. If we
would guide by the light of reason, we
must let our minds be bold. 17
Again, the concerns of the majority are premature
precisely because there are as yet no guidelines that
will direct the Court and serve as solid basis for
determining the constitutionality of the new
identification system. The Court cannot and should not
anticipate the constitutional issues and rule on the
basis of guesswok. The guidelines would, among
others, determine the particular biometrics method that
would be used and the specific personal data that
would be collected provide the safeguard, (if any) and
supply the details on how this new system in supposed
to work. The Court should not jump the gun on the
Executive.
III
On the issue of funding, the majority submits that
Section 6 of A.O. No. 308, which allows the government
agencies included in the new system to obtain funding
form their respective budgets, is unconstitutional for
being an illegal transfer of appropriations.
It is not so. The budget for the national identification
system cannot be deemed a transfer of funds since the
same is composed of and will be implemented by the
member government agancies. Morever, thses
agencies particularly the GSIS and SSS have been
issuing some form of identification or membership
card. The improved ID cards that will be issued under
this new system would just take place of the old
identification cards and budget-wise, the funds that
were being used to manufacture the old ID cards, which
are usually accounted for under the "Supplies and
Materials" item of the Government Accounting and
Auditing Manual, could now be utilized to fund the new
cards. Hence, what is envisioned is not transfer of
appropriations but a pooling of funds and resources by
the various government agencies involved in the
project.
WHEREFORE, I vote to dismiss the petition.
MENDOZA, J., separate opinion;
My vote is to dismiss the petition in this case.
First. I cannot find anything in the text of Administrative
Order No. 308 of the President of the Philippines that
would warrant a declaration that it is violative of the
right of privacy. So far as I can see, all the
Administrative Orders does is
• establish an Identification Reference System
involving the following service agencies of the
government:
º Presidential Management Staff
º National Economic Developemnt Authority
º Department of the Interior and Local Government
º Department of Health
º Government Service Isurance System
º Social Security Office
º National Computer Center
• create a committee, composed of the heads of the
agencies concerned, to draft rules for the System;
• direct the use of the Population Reference Number
(PRN) generated by the National Census and Statistics
Office as the common reference number to link the
participating agencies into an Identification Reference
System, and the adoption by the agencies of standards
in the use of biometrics technology and computer
designs; and
• provide for the funding of the System from the
budgets of the agencies concerned.
Petitioner argues, however, that "the implementation of
A.O. No. 308 will mean that each and every Filipino and
resident will have a file with the government containing,
at the very least, his PRN and physiological biometrics
such as, but not limited to, his facial features, hand
geometry, retinal or iris pattern, DNA pattern,
fingerprints, voice characteristics, and signature
analysis."
In support of his contention, petitioner quotes the
following publication surfed from the Internet:
The use of biometrics is the means by
which an individual may be
conclusively identified. There are two
types of biometrics identifiers; Physical
and behavioral characteristics,
Physiological biometrics include facial
features, hand geometry, retinal and iris
patterns. DNA, and fingerprints
characteristics include voice
characteristics and signature
analysis. 1
I do not see how from the bare provisions of the Order,
the full text of which is set forth in the majority opinion,
petitioner and the majority can conclude that the
Identification Reference System establishes such
comprehensive personal information dossiers that can
destroy individual privacy. So far as the Order
provides, all that is contemplated is an identification
system based on data which the government agencies
involved have already been requiring individuals
making use of their services to give.
For example, under C.A. No. 591, §2(a) the National
Statistics Office collects "by enumeration, sampling or
other methods, statistics and other information
concerning population . . . social and economic
institutions, and such other statistics as the President
may direct." In addition, it is in charge of the
administration of the Civil Register, 2 which means that
it keeps records of information concerning the civil
status of persons, i.e., (a) births, (b) deaths, (c)
marriages and their annulments; (d) legitimations, (e)
adoptions, (f) acknowledgments of natural children, (g)
naturalizations, and (h) changes of name. 3
Other statutes giving government agencies the power
to require personal information may be cited. R.A. No.
4136, §23 gives the Land Transportation Office the
power to require applicants for a driver's license to give
information regarding the following: their full names,
date of birth, height, weight, sex, color of eyes, blood
type, address, and right thumbprint; 4 while R.A. No.
8239, §5 gives the Department of Foreign Affairs the
power to require passport applicants to give
information concerning their names, place of birth, date
of birth, religious affiliation, marital status, and
citizenship.
Justice Romero, tracing the origin of privacy to the
attempt of the first man and woman to cover their
nakedness with fig leaves, bemoans the fact that
technology and institutional pressures have threatened
our sense of privacy. On the other hand, the majority
would have none of the Identification Reference
System "to prevent the shrinking of the right to privacy,
once regarded as "the most comprehensive of rights
and the right most valued by civilized men."" 5 Indeed,
techniques such as fingerprinting or electronic
photography in banks have become commonplace. As
has been observed, the teaching hospital has come to
be accepted as offering madical services that
compensate for the loss of the isolation of the sickbed;
the increased capacity of applied sciences to utilize
more and more kinds of data and the cosequent calls
for such data have weakened traditional resistance to
disclosure. As the area of relevance, political or
scientific, expands, there is strong psychological
pressure to yield some ground of privacy. 6
But this is a fact of life to which we must adjust, as long
as the intrusion into the domain of privacy is
reasonable. In Morfe v. Mutuc, 7 this Court dealt
the coup de grace to claims of latitudinarian scope for
the right of privacy by quoting the pungent remark of
an acute observer of the social scene, Carmen
Guerrero-Nakpil:
Privacy? What's that? There is no
precise word for it in Filipino, and as far
as I know any Filipino dialect and there
is none because there is no need for it.
The concept and practice of privacy are
missing from conventional Filipino life.
The Filipino believes that privacy is an
unnecessary imposition, an eccentricity
that is barely pardonable or, at best, an
esoteric Western afterthought
smacking of legal trickery. 8
Justice Romero herself says in her separate
opinion that the word privacy is not even in the
lexicon of Filipinos.
As to whether the right of privacy is "the most valued
right," we do well to remember the encomiums paid as
well to other constitutional rights. For Professor
Zechariah Chafee, "The writ of habeas corpus is "the
most important human rights provision in the
fundamental law,""9 For Justice Cardozo, on the other
hand, freedom of expression "is the matrix, the
indispensable condition of nearly every other form of
freedom." 10
The point is that care must be taken in assigning values
to constitutional rights for the purpose of calibrating
them on the judicial scale, especially if this means
employing stricter standards of review for regulations
alleged to infringe certain rights deemed to be "most
valued by civilized men.''
Indeed, the majority concedes that "the right of privacy
does not bar all incursions into individual privacy . . .
[only that such] incursions into the right must be
accompanied by proper safeguards and well-defined
standards to prevent unconstitutional invasions." 11 In
the case of the Identification Reference System, the
purpose is to facilitate the transaction of business with
service agencies of the government and to prevent
fraud and misrepresentation. The personal
identification of an individual can facilitate his
treatment in any government hospital in case of
emergency. On the other hand, the delivery of material
assistance, such as free medicines, can be protected
from fraud or misrepresentation as the absence of a
data base makes it possible for unscrupulous
individuals to obtain assistance from more than one
government agency.
Second. Thus, the issue in this case is not really
whether A.O. No. 308 violates the right of privacy
formed by emanations from the several constitutional
rights cited by the majority. 12 The question is whether
it violates freedom of thought and of conscience
guaranteed in the following provisions of our Bill of
Rights (Art. III):
Sec. 4. No law Shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right
 of the people peaceably to assemble
and petition the government for redress
of grievances.
Sec. 5. No law shall be made respecting
an establishment of religion, or
prohibiting the free exercise thereof.
The free exercise enjoyment of religious
profession and worship, without
discrimination or preference, shall be
forever be allowed. No religious test
shall be required for the exercise of civil
or political rights.
More specifically, the question is whether the
establishment of the Identification Reference System
will not result in the compilation of massive dossiers
on individuals which, beyond their use for
identification, can become instruments of thought
control. So far, the next of A.O. No. 308 affords no basis
for believing that the data gathered can be used for
such sinister purpose. As already stated, nothing that
is not already being required by the concerned
agencies of those making use of their servides is
required by the Order in question. The Order simply
organizes service agencies of the government into a
System for the purpose of facilitating the identification
of persons seeking basic services and social security.
Thus, the whereas clauses of A.O. No. 308 state:
WHEREAS, there is a need to provide
Filipino citizens and foreign residents
with the facility to conveniently transact
business with basic services and social
security providers and other
government instrumentalities;
WHEREAS, this will require a prodecued them, demonstrates clearly
computerized system to properly and
efficiently identify persons seeking
basic services and social security, and
reduce, if not totally eradicate,
fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and
collaborative effort among the various
basic services and social security
providing agencies and other
government instrumentalities is
required to achieve such a system:
The application of biometric technology and the
standardization of computer designs can
provide service agencies with precise
identification of individuals, but what is wrong
with that?
Indeed, A.O. No. 308 is no more than a directive to
government agencies which the President of the
Philippines has issued in his capacity as administrative
head. 13 It is not a statute. It confers no right; it imposes
no duty; it affords no protection; it creates no
office. 14 It is, as its name indicates, a mere
administrative order, the prescise nature of which is
given in the following excerpt from the decision in the
early case of Olsen & Co. v. Herstein: 15
[It] is nothing more or less than a
command from a superior to an
inferior. It creates no relation except
between the official who issues it and
the official who receives it. Such orders,
whether executive or departmental,
have for their object simply the efficient
and economical administration of the
affairs of the department to which or in
which they are issued in accordance
with the law governing the subject-
matter. They are administrative in their
nature and do not pass beyond the
limits of the department to which they
are directed or in which they are
published, and, therefore, create no
rights in third persons. They are based
on, and are the product of a relationship
in which power is their source and
obedience their object. Disobedience to
or deviation from such an order can be
punished only by the power which
issued it: and, if that power fails to
administer the corrective, then the
disobedience goes unpunished. In that
relationship no third person or official
may intervene, not even the court. Such
orders may be very temporary, they
being subject to instant revocation or
modification by the power which
published them. Their very nature, as
determined by the relationship which
the impossibility of any other person
enforcing them except the one who
created them. An attempt on the part of
the courts to enforce such orders would
result not only in confusion but,
substantially, in departmental anarchy
also. 16
Third. There is no basis for believing that, beyond the
identification of individuals, the System will be used for
illegal purposes. Nor are sanctions lacking for the
unauthorized use or disclosure of information gathered
by the various agencies constituting the System. For
example, as the Solicitor General points out. C.A. No.
591. §4 penalizes the unauthorized use or disclosure of
data furnished the NSO with a fine of not more than
P600.00 or imprisonment for not more than six months
or both.
At all events, at this stage, it is premature to pass on
the claim that the Identification Reference System can
be used for the purpose of compiling massive dossiers
on individuals that can be used to curtail basic civil and
political rights since, if at all, this can only be provided
in the implementing rules and regulations which have
yet to be promulgated. We have already stated that A.O.
No. 308 is not a statute. Even in the case of statutes,
however, where implementing rules are necessary to
put them into effect, it has been held that an attack on
their constitutionality would be premature. 17 As Edgar
in King Lear puts it, "Ripeness is all." 18For, to borrow
some more Shakespearean lines,
The canker galls the
infants of the spring
Too oft before their
buttons be disclos'd. 19
That, more than any doctrine of constitutional
law I can think of, succinctly expresses the rule
on ripeness, prematurity, and hypothetical,
speculative, or conjectural claims.
Of special relevance to this case is Laird v.
Tatum. 20 There, a class suit was brought seeking
declaratory and injunctive relief on the claim that a U.S.
Army intelligence surveillance of civilian political
activity having "a potential for civil disorder" exercised
"a present inhibiting effect on [respondents'] full
expression and utilization of their First Amendment
rights." In holding the case nonjusticiable, the U.S.
Supreme Court, in an opinion by Chief Justice Burger.
said: 21
In recent years this Court has found in a
number of cases that constitutional
violations may arise from the deterrent
or ''chilling," effect of governmental
regulations that fall short of a direct
prohibition against the exercise of First
Amendment rights. [Citation of cases
omitted] In none of these cases,
however, did the chilling effect arise
merely from the individual's knowledge
that a governmental agency was
engaged in certain activities or from the
individual's concomitant fear that,
armed with the fruits of those activities,
the agency might in the future take
some other and additional action
detrimental to that individual. Rather, in
each of these cases, the challenged
exercise of governmental power was
regulatory, proscriptive, or compulsory
in nature, and the complainant was
either presently or prospectively
subject to the regulations,
proscriptions, or compulsions that he
was challenging. . . .
[T]hese decisions have in no way
eroded the "established principle that to
entitle a private individual to invoke the
judicial power to determine the validity
of executive or legislative action he
must show that he was sustained or is
immediately in danger of sustaining a
direct injury as the result of that action.
...
The respondents do not meet this test;
[the] alleged "chilling" effect may
perhaps be seen as arising from
respondents' perception of the system
as inappropriate to the Army's role
under our form of government, or as
arising from respondents' beliefs that it
is inherently dangerous for the military
to be concerned with activities in the
civilian sector, or as arising from
respondents' less generalized yet
speculative apprehensiveness that the
Army may at some future date misuse
the information in some way that would
cause direct harm to respondents.
Allegations of a subjective "chill" are
not an adequate substitute for a claim of
specific present objective harm or a
threat of specific future harm: "the
federal courts established pursuant to
Article III of the Constitution do not
render advisory opinions." United
Public Workers v. Mitchell, 330 US 75,
89, 91 L Ed 754, 766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is
involved in this case and that any objection to the
identification Reference System on the ground that it
violates freedom of thought is premature, speculative,
or conjectural pending the issuance of the
implementing rules, it is clear that petitioner Blas F.
Ople has no cause of action and, therefore, no standing
to bring this action. Indeed, although he assails A.O.
No. 308 on the ground that it violates the right of
privacy, he claims no personal injury suffered as a
result of the Order in question. Instead, he says he is
bringing this action as taxpayer, Senator, and member
of the Government Service Insurance System.
Insofar as petitioner claims an interest as taxpayer, it is
sufficient to say that A.O. No. 308 does not involve the
exercise of the taxing or spending power of the
government.
Insofar as he purports to sue as a member of the GSIS,
neither does petitioner have an intertest sufficient to
enable him to litigate a constitutional question.
Petitioner claims that in providing that the funds
necessary for implementing the System shall be taken
from the budgets of the concerned agencies. A.O. No.
308 violates Art. VI, §25(5) which. provides:
No law shall be passed authorizing any
transfer of appropriations; however, the
President, the President of the Senate,
the Speaker of the House of
Representatives, the Chief Justice of
 the Supreme Court, and the heads of
Constitutional Commissions may, by
law, be authorized to augment any item
in the general appropriations law for
their respective offices from savings in
other items of their respective
appropriations.
But, as the Solicitor General states:
authority has the duty of supervising
the enforcement of laws for the
maintenance of general peace and
public order. As administrative head,
his duty is to see that every government
office is managed and maintained
properly by the persons in charge of it
in accordance with pertinent laws and
regulations.

Petitioner's argument is anchored on . . . The power of control vested in him

two erroneous assumptions: one, that by the Constitution makes for a strongly
all the concerned agencies, including centralized administrative system. It
the SSS and the GSIS, receive reinforces further his position as the
budgetary support from the national executive of the government, enabling
government; and two, that the GAA is him to comply more effectively with his
the only law whereby public funds are constitutional duty to enforce the
appropriated. Both assumptions are laws. It enables him to fix a uniform
wrong. standard of a administrative eficiency
and to check the official conduct of his
The SSS and GSIS do not presently agents. The decisions of all the officers
within his department are subject to his
receive budgetary support from the
power of revision, either on his own
National Government. They have
motion or on the appeal of some
achieved self-supporting status such
that the contributions of their members individual who might deem himself
are sufficient to finance their expenses. aggrieved by the action of an
administrative official. In case of
One would be hard pressed to find in
serious dereliction of duty, he may
the GAA an appropriation of funds to
suspend or remove the officials
the SSS and the GSIS.
concerned. 23
Furthermore, their respective charters
For the foregoing reasons, the petition should be
authorize the SSS and the GSIS to
DISMISSED.
disburse their funds (Rep. Act No. 1161
[1954], as amended, Sec. 25; Pres.
Decree No. 1146 [1977], as amended,
Sec. 29) without the need for a separate
appropriation from the Congress.

Nor as Senator can petitioner claim standing since no

power of Congress is alleged to have been impaired by
the Administrative Order in question. 22 As already
stated, in issuing A.O. No. 308, the President did not
exercise the legislative power vested by the
Constitution in Congress. He acted on the basis of his
own powers as administrative head of the government,
as distinguished from his capacity as the Executive.
Dean Sinco elucidates the crucial distinction thus:

The Constitution of the Philippines

makes the President not only the
executive but also the administrative
head of the government. . . . Executive
power refers to the legal and political
function of the President involving the
exercise of discretion. Administrative
power, on the other hand, concerns
itself with the work of applying policies
and enforcing orders as determined by
proper governmental organs. These two
functions are often confused by the
public: but they are distinct from each
other. The President as the executive
5) G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner,
vs.
SENATOR JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL
AND BAR COUNCIL AND HUMAN RIGHTS AND
HESIQUIO R. MALLILLIN, respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A.Tomas Espinosa for private respondent
Hesiquio R. Mallillin
PADILLA, J.:
The Court had hoped that its decision in Sarmiento III vs.
Mison, 1 would have settled the question of which
appointments by the President, under the 1987
Constitution, are to be made with and without the review of
the Commission on Appointments. The Mison case was the
first major case under the 1987 Constitution and in
construing Sec. 16, Art. VII of the 1987 Constitution which
provides:
The President shall nominate and, with the
consent of the Commission on
Appointments, appoint the heads of the
executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. He shall also
appoint all other officers of the Government
whose appointments are not otherwise
provided for by law, and those whom he
may be authorized by law to appoint. The
Congress may, by law, vest the
appointment of other officers lower in rank
in the President alone, in the courts, or in
the heads of the departments, agencies,
commissions or boards.
The President shall have the power to
make appointments during the recess of
the Congress, whether voluntary or
compulsory, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the
1986 Constitutional Commission and the country's
experience under the 1935 and 1973 Constitutions, held
that only those appointments expressly mentioned in the
first sentence of Sec. 16, Art. VII are to be reviewed by the
Commission on Appointments, namely, "the heads of the
executive department, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution." All
other appointments by the President are to be made without
the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein
respondent Salvador M. Mison as head of the Bureau of
Customs, without the confirmation of the Commission on
Appointments, was held valid and in accordance with the
Constitution.
The Mison case doctrine did not foreclose contrary
opinions. So with the very provisions of Sec. 16, Art. VII as
designed by the framers of the 1987 Constitution. But the
Constitution, as construed by this Court in appropriate
cases, is the supreme law of the land. And it cannot be over-
stressed that the strength of the Constitution, with all its
imperfections, lies in the respect and obedience accorded
to it by the people, especially the officials of government,
who are the subjects of its commands.
Barely a year after Mison, the Court is again confronted with
a similar question, this time, whether or not the appointment
by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by
the 1987 Constitution, is to be made with or without the
confirmation of the Commission on Appointments (CA, for
brevity). Once more, as in Mison, the Court will resolve the
issue irrespective of the parties involved in the litigation,
mindful that what really matters are the principles that will
guide this Administration and others in the years to come.
Since the position of Chairman of the Commission on
Human Rights is not among the positions mentioned in the
first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation
of the Commission on Appointments, it follows that the
appointment by the President of the Chairman of the (CHR),
is to be made without the review or participation of the
Commission on Appointments.
To be more precise, the appointment of the Chairman and
Members of the Commission on Human Rights is not
specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission,
the Commission on Elections and the Commission on Audit,
whose appointments are expressly vested by the
Constitution in the President with the consent of the
Commission on Appointments. 2
The President appoints the Chairman and Members of the
Commission on Human Rights pursuant to the second
sentence in Section 16, Art. VII, that is, without the
confirmation of the Commission on Appointments because
they are among the officers of government "whom he (the
President) may be authorized by law to appoint." And
Section 2(c), Executive Order No. 163, 5 May 1987,
authorizes the President to appoint the Chairman and
Members of the Commission on Human Rights. It provides:
(c) The Chairman and the Members of the
Commission on Human Rights shall be
appointed by the President for a term of
seven years without reappointment.
 Appointment to any vacancy shall be only
for the unexpired term of the predecessor.
The above conclusions appear to be plainly evident and,
therefore, irresistible. However, the presence in this case of
certain elements — absent in the Mison case — makes
necessary a closer scrutiny. The facts are therefore
essential.
On 27 August 1987, the President of the
Philippines designated herein petitioner Mary Concepcion
Bautista as "Acting Chairman, Commission on Human
Rights." The letter of designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING
CHAIRMAN, COMMISSION ON HUMAN
RIGHTS, to succeed the late Senator Jose
W. Diokno and Justice J. B. L. Reyes.
HON. MARY CONCEPCION BAUTISTA 3
Realizing perhaps the need for a permanent chairman and
members of the Commission on Human Rights, befitting an
independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988
extended to petitioner Bautista a permanent appointment
as Chairman of the Commission. The appointment letter is
as follows:
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
M a d a m:
Pursuant to the provisions of existing laws, the following are
hereby appointed to the positions indicated opposite their
respective names in the Commission on Human Rights:
MARY CONCEPCION BAUTISTA — Chairman
ABELARDO L. APORTADERA, JR — Member
SAMUEL SORIANO — Member
HESIQUIO R. MALLILLIN — Member
NARCISO C. MONTEIRO — Member
By virtue hereof, they may qualify and enter upon the
performance of the duties of the office furnishing this Office
and the Civil Service Commission with copies of their oath
of office.
It is to be noted that by virtue of such appointment,
petitioner Bautista was advised by the President that she
could qualify and enter upon the performance of the duties
of the office of Chairman of the Commission on Human
Rights, requiring her to furnish the office of the President
and the Civil Service Commission with copies of her oath of
office.
On 22 December 1988, before the Chief Justice of this
Court, Hon. Marcelo B. Fernan, petitioner Bautista took her
oath of office by virtue of her appointment as Chairman of
the Commission on Human Rights. The full text of the oath
of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del
Pilar Street, Bangkal, Makati, Metro Manila having been
appointed to the position of CHAIRMAN of the Commission
on Human Rights, do solemnly swear that I will discharge
to the best of my ability all the duties and responsibilities of
the office to which I have been appointed; uphold the
Constitution of the Republic of the Philippines, and obey all
the laws of the land without mental reservation or purpose
of evasion. SO HELP ME GOD.
SUBSCRIBED AND SWORN TO before me this 22nd day
of December in the year of Our Lord, 1988 in Manila.
Immediately, after taking her oath of office as Chairman of
the Commission on Human Rights, petitioner Bautista
discharged the functions and duties of the Office of
Chairman of the Commission on Human Rights which, as
previously stated, she had originally held merely in an
acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter
from the Secretary of the Commission on Appointments
requesting her to submit to the Commission certain
information and documents as required by its rules in
connection with the confirmation of her appointment as
Chairman of the Commission on Human Rights. 7 On 10
January 1989, the Commission on Appointments' Secretary
again wrote petitioner Bautista requesting her presence at
a meeting of the Commission on Appointments Committee
on Justice, Judicial and Bar Council and Human Rights set
for 19 January 1989 at 9 A.M. at the Conference Room, 8th
Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that
would deliberate on her appointment as Chairman of the
Commission on Human Rights. 8
On 13 January 1989, petitioner Bautista wrote to the
Chairman of the Commission on Appointments stating, for
the reasons therein given, why she considered the
Commission on Appointments as having no jurisdiction to
review her appointment as Chairman of the Commission on
Human Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
 SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
S i r:
We acknowledge receipt of the communication from the
Commission on Appointments requesting our appearance
on January 19, 1989 for deliberation on our appointments.
We respectfully submit that the appointments of the
Commission commissioners of the Human Rights
Commission are not subject to confirmation by the
Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly
vested on the President the appointing power, has
expressly mentioned the government officials whose
appointments are subject to the confirmation of the
Commission on Appointments of Congress. The
Commissioners of the Commission on Human Rights are
not included among those.
Where the confirmation of the Commission on
Appointments is required, as in the case of the
Constitutional Commissions such as the Commission on
Audit, Civil Service Commission and the Commission on
Elections, it was expressly provided that the nominations
will be subject to confirmation of Commission on
Appointments. The exclusion again of the Commission on
Human Rights, a constitutional office, from this enumeration
is a clear denial of authority to the Commission on
Appointments to review our appointments to the
Commission on Human Rights.
Furthermore, the Constitution specifically provides that this
Commission is an independent office which:
a. must investigate all forms of human rights
violations involving civil and political rights;
b. shall monitor the government's compliance in all
our treaty obligations on human rights. We submit that, the
monitoring of all agencies of government, includes even
Congress itself, in the performance of its functions which
may affect human rights;
c. may call on all agencies of government for the
implementation of its mandate.
The powers of the Commission on Appointments is in fact
a derogation of the Chief Executive's appointing power and
therefore the grant of that authority to review a valid
exercise of the executive power can never be presumed. It
must be expressly granted.
The Commission on Appointments has no jurisdiction under
the Constitution to review appointments by the President of
Commissioners of the Commission on Human Rights.
In view of the foregoing considerations, as Chairman of an
independent constitutional office. I cannot submit myself to
the Commission on Appointments for the purpose of
confirming or rejecting my appointment.9
In respondent Commission's comment (in this case), dated
3 February 1989, there is attached as Annex 1 a letter of
the Commission on Appointments' Secretary to the
Executive Secretary, Hon. Catalino Macaraig, Jr. making
reference to the "ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on
14 January 1989 as Chairperson of the Commission on
Human Rights" 10 and informing Secretary Macaraig that,
as previously conveyed to him in a letter of 25 January
1989, the Commission on Appointments disapproved
petitioner Bautista's "ad interim appointment' as
Chairperson of the Commission on Human Rights in view
of her refusal to submit to the jurisdiction of the Commission
on Appointments. The letter reads:1
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her
Excellency extended to Atty. Mary Concepcion Bautista on
14 January 1989 as Chairperson of the Commission on
Human Rights.
As we conveyed to you in our letter of 25 January 1989, the
Commission on Appointments, assembled in plenary
(session) on the same day, disapproved Atty. Bautista's ad
interim appointment as Chairperson of the Commission on
Human Rights in view of her refusal to submit to the
jurisdiction of the Commission on Appointments.
This is to inform you that the Commission on Appointments,
likewise assembled in plenary (session) earlier today,
denied Senator Mamintal A. J. Tamano's motion for
reconsideration of the disapproval of Atty. Bautista's ad
interim appointment as Chairperson of the Commission on
Human Rights.
On the same date (1 February 1989), the Commission on
Appointments' Secretary informed petitioner Bautista that
the motion for reconsideration of the disapproval of her "ad
interim appointment as Chairman of the Commission on
Human Rights" was denied by the Commission on
Appointments. The letter reads as follows:
 ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the
Commission on Appointments, the denial by the
Commission on Appointments, assembled in plenary
(session) earlier today, of Senator Mamintal A.J. Tamano's
motion for reconsideration of the disapproval of your ad
interim appointment as Chairperson of the Commission on
Human Rights is respectfully conveyed.
Thank you for your attention.
In Annex 3 of respondent Commission's same comment,
dated 3 February 1989, is a news item appearing in the 3
February 1989 issue of the "Manila Standard" reporting that
the President had designated PCHR Commissioner
Hesiquio R. Mallillin as "Acting Chairman of the
Commission" pending the resolution of Bautista's case
which had been elevated to the Supreme Court. The news
item is here quoted in full, thus —
Aquino names replacement for MaryCon
President Aquino has named replacement
for Presidential Commission on Human
Rights Chairman Mary Concepcion
Bautista whose appointment was rejected
anew by the Congressional commission on
appointments.
The President designated PCHR
commissioner Hesiquio R. Mallillin as
acting chairman of the Commission
pending the resolution of Bautista's case
which had been elevated to the Supreme
Court.
The President's action followed after
Congressional Commission on
Appointments Chairman, Senate President
Jovito Salonga declared Bautista can no
longer hold on to her position after her
appointment was not confirmed for the
second time.
For all practical purposes, Salonga said
Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista
to vacate her office and give way to Mallillin
(Mari Villa) 13
On 20 January 1989, or even before the respondent
Commission on Appointments had acted on her "ad
interimappointment as Chairman of the Commission on
Human Rights" petitioner Bautista filed with this Court the
present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any
action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human
Rights, on the lawfully extended appointment of the
petitioner as Chairman of the Commission on Human
Rights, on the ground that they have no lawful and
constitutional authority to confirm and to review her
appointment." 14
The prayer for temporary restraining order was "to enjoin
the respondent Commission on Appointments not to
proceed further with their deliberation and/or proceedings
on the appointment of the petitioner ... nor to enforce,
implement or act on any order, resolution, etc. issued in the
course of their deliberations." 15
Respondents were required to file comment within ten (10)
days. 16 On 7 February 1989, petitioner filed an amended
petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting
chairman as party respondent and praying for the
nullification of his appointment. The succeeding day, a
supplemental urgent ex-parte motion was filed by petitioner
seeking to restrain respondent Mallillin from continuing to
exercise the functions of chairman and to refrain from
demanding courtesy resignations from officers or
separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental
urgent ex-parte motion, the Court resolved to issue a
temporary restraining order directing respondent Mallillin to
cease and desist from effecting the dismissal, courtesy
resignation, i removal and reorganization and other similar
personnel actions. 17 Respondents were likewise required
to comment on said amended petition with allowance for
petitioner to file a reply within two (2) days from receipt of a
copy thereof.
Respondents Senator Salonga, the Commission on
Appointments the Committee on J & BC and Human Rights
filed a comment to the amended petition on 21 February
1989. 18 Petitioner filed her reply. 19 On 24 February 1989,
respondent Mallillin filed a separate comment. 20 The Court
required petitioner to reply to respondent Mallillin's
comment . 21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an
instrumentality of a co-ordinate and co-equal branch of
government, the Court did not issue a temporary restraining
order directed against it. However, this does not mean that
the issues raised by the petition, as met by the respondents'
comments, will not be resolved in this case. The Court will
not shirk from its duty as the final arbiter of constitutional
issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to,
it is clear that petitioner Bautista was extended by Her
Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17
December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's
appointment on 17 December 1988 is an appointment that
was for the President solely to make, i.e., not an
appointment to be submitted for review and confirmation (or
rejection) by the Commission on Appointments. This is in
accordance with Sec. 16, Art. VII of the 1987 Constitution
and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is
whether the President, subsequent to her act of 17
December 1988, and after petitioner Bautista had qualified
for the office to which she had been appointed, by taking
the oath of office and actually assuming and discharging the
functions and duties thereof, could extend another
appointment to the petitioner on 14 January 1989, an "ad
interim appointment" as termed by the respondent
Commission on Appointments or any other kind of
appointment to the same office of Chairman of the
Commission on Human Rights that called for confirmation
by the Commission on Appointments.
The Court, with all due respect to both the Executive and
Legislative Departments of government, and after careful
deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner
Bautista's designation as Acting Chairman to a permanent
appointment as Chairman of the Commission on Human
Rights on 17 December 1988, significantly she advised
Bautista (in the same appointment letter) that, by virtue of
such appointment, she could qualify and enter upon the
performance of the duties of the office (of Chairman of the
Commission on Human Rights). All that remained for
Bautista to do was to reject or accept the appointment.
Obviously, she accepted the appointment by taking her oath
of office before the Chief Justice of the Supreme Court,
Hon. Marcelo B. Fernan and assuming immediately
thereafter the functions and duties of the Chairman of the
Commission on Human Rights. Bautista's appointment
therefore on 17 December 1988 as Chairman of the
Commission on Human Rights was a completed act on the
part of the President. To paraphrase the great jurist, Mr.
Chief Justice Marshall, in the celebrated case of Marbury
vs. Madison. 23
xxx xxx xxx
The answer to this question seems an
obvious one. The appointment being the
sole act of the President, must be
completely evidenced, when it is shown
that he has done everything to be
performed by him.
xxx xxx xxx
Some point of time must be taken when the
power of the executive over an officer, not
removable at his will must cease. That
point of time must be when the
constitutional power of appointment has
been exercised. And this power has been
exercised when the last act, required from
the person possessing the power, has
been performed. ....
xxx xxx xxx
But having once made the appointment, his
(the President's) power over the office is
terminated in all cases, where by law the
officer is not removable by him. The right to
the office is then in the person appointed,
and he has the absolute, unconditional
power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON
14 JANUARY 1989
It is respondent Commission's submission that the
President, after the appointment of 17 December 1988
extended to petitioner Bautista, decided to extend another
appointment (14 January 1989) to petitioner Bautista, this
time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for
confirmation. And yet, it seems obvious enough, both in
logic and in fact, that no new or further appointment could
be made to a position already filled by a previously
completed appointment which had been accepted by the
appointee, through a valid qualification and assumption of
its duties.
Respondent Commission vigorously contends that,
granting that petitioner's appointment as Chairman of the
Commission on Human Rights is one that, under Sec. 16,
Art. VII of the Constitution, as interpreted in the Mison case,
is solely for the President to make, yet, it is within the
president's prerogative to voluntarily submit such
appointment to the Commission on Appointment for
confirmation. The mischief in this contention, as the Court
perceives it, lies in the suggestion that the President (with
Congress agreeing) may, from time to time move power
boundaries, in the Constitution differently from where they
are placed by the Constitution.
The Court really finds the above contention difficult of
acceptance. Constitutional Law, to begin with, is concerned
with power not political convenience, wisdom, exigency, or
even necessity. Neither the Executive nor the Legislative
(Commission on Appointments) can create power where
the Constitution confers none. The evident constitutional
intent is to strike a careful and delicate balance, in the
matter of appointments to public office, between the
President and Congress (the latter acting through the
Commission on Appointments). To tilt one side or the other
of the scale is to disrupt or alter such balance of power. In
other words, to the extent that the Constitution has blocked
off certain appointments for the President to make with the
participation of the Commission on Appointments, so also
has the Constitution mandated that the President can
confer no power of participation in the Commission on
Appointments over other appointments exclusively
reserved for her by the Constitution. The exercise of political
options that finds no support in the Constitution cannot be
sustained.
Nor can the Commission on Appointments, by the actual
exercise of its constitutionally delimited power to review
presidential appointments, create power to confirm
appointments that the Constitution has reserved to the
President alone. Stated differently, when the appointment
is one that the Constitution mandates is for the President to
make without the participation of the Commission on
Appointments, the executive's voluntary act of submitting
such appointment to the Commission on Appointments and
the latter's act of confirming or rejecting the same, are done
without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT
TO THE COMMISSION ON APPOINTMENTS AN
APPOINTMENT THAT UNDER THE CONSTITUTION
SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE
MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti,
that the Executive may voluntarily allow the Commission on
Appointments to exercise the power of review over an
appointment otherwise solely vested by the Constitution in
the President. Yet, as already noted, when the President
appointed petitioner Bautista on 17 December 1988 to the
position of Chairman of the Commission on Human Rights
with the advice to her that by virtue of such appointment
(not, until confirmed by the Commission on Appointments),
she could qualify and enter upon the performance of her
duties after taking her oath of office, the presidential act of
appointment to the subject position which, under the
Constitution, is to be made, in the first place, without the
participation of the Commission on Appointments, was then
and there a complete and finished act, which, upon the
acceptance by Bautista, as shown by her taking of the oath
of office and actual assumption of the duties of said office,
installed her, indubitably and unequivocally, as the lawful
Chairman of the Commission on Human Rights for a term
of seven (7) years. There was thus no vacancy in the
subject office on 14 January 1989 to which an appointment
could be validly made. In fact, there is no vacancy in said
office to this day.
Nor can respondents impressively contend that the new
appointment or re-appointment on 14 January 1989 was
an ad interim appointment, because, under the
Constitutional design, ad interim appointments do not apply
to appointments solely for the President to make, i.e.,
without the participation of the Commission on
Appointments. Ad interim appointments, by their very
nature under the 1987 Constitution, extend only to
appointments where the review of the Commission on
Appointments is needed. That is why ad
interim appointments are to remain valid until disapproval
by the Commission on Appointments or until the next
adjournment of Congress; but appointments that are for the
President solely to make, that is, without the participation of
the Commission on Appointments, can not be ad
interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987,
PROVIDING THAT THE TENURE OF THE CHAIRMAN
AND MEMBERS OF THE COMMISSION ON HUMAN
RIGHTS SHALL BE AT THE PLEASURE OF THE
PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without
confirmation by the Commission on Appointments,
petitioner Bautista, as Chairman of the Commission on
Human Rights, can be removed from said office at anytime,
at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the
Commission on Appointments, there was greater
reason for her removal by the President and her
replacement with respondent Mallillin Thus, according to
respondent Mallillin the petition at bar has become moot
and academic.
We do not agree that the petition has become moot and
academic. To insist on such a posture is akin to deluding
oneself that day is night just because the drapes are drawn
and the lights are on. For, aside from the substantive
questions of constitutional law raised by petitioner, the
records clearly show that petitioner came to this Court in
timely manner and has not shown any indication of
abandoning her petition.
Reliance is placed by respondent Mallillin on Executive
Order No. 163-A, 30 June 1987, full text of which is as
follows:
WHEREAS, the Constitution does not
prescribe the term of office of the Chairman
and Members of the Commission on
Human Rights unlike those of other
Constitutional Commissions;
NOW, THEREFORE, I, CORAZON C.
AQUINO, President of the Philippines, do
hereby order:
SECTION 1. Section 2, sub-paragraph (c)
of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the
Commission on Human Rights shall be
appointed by the President. Their tenure in
office shall be at the pleasure of the
President.
SEC. 2. This Executive Order shall take
effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of
Our Lord, nineteen hundred and eighty-
seven.
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary 24
Previous to Executive Order No. 163-A, or on 5 May 1987,
Executive Order No. 163 25 was issued by the President,
Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members
of the Commission on Human Rights shall
be appointed by the President for a term of
seven years without reappointment.
Appointments to any vacancy shall be only
for the unexpired term of the predecessor.
It is to be noted that, while the earlier executive order (No.
163) speaks of a term of office of the Chairman and
Members of the Commission on Human Rights — which is
seven (7) years without reappointment — the later
executive order (163-A) speaks of the tenure in office of the
Chairman and Members of the Commission on Human
Rights, which is "at the pleasure of the President."
Tenure in office should not be confused with term of office.
As Mr. Justice (later, Chief Justice) Concepcion in his
concurring opinion in Alba vs. Evangelista, 26 stated:
The distinction between "term" and
"tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the
Civil Service may be removed or
suspended except for cause, as provided
by law" (Art. XII, section 4), and this
fundamental principle would be defeated if
Congress could legally make the tenure of
some officials dependent upon the
pleasure of the President, by clothing the
latter with blanket authority to replace a
public officer before the expiration of his
term. 27
When Executive Order No. 163 was issued, the evident
purpose was to comply with the constitutional provision that
"the term of office and other qualifications and disabilities of
the Members of the Commission (on Human Rights) shall
be provided by law" (Sec. 17(2), Art. XIII, 1987
Constitution).
As the term of office of the Chairman (and Members) of the
Commission on Human Rights, is seven (7) years, without
reappointment, as provided by Executive Order No. 163,
and consistent with the constitutional design to give the
Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of
said Chairman (and Members) cannot be later made
dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority
opinion in the Alba case, supra, because the power of the
President, sustained therein, to replace a previously
appointed vice-mayor of Roxas City given the express
provision in Sec. 8, Rep. Act No. 603 (creating the City of
Roxas) stating that the vice-mayor shall serve at the
pleasure of the President, can find no application to the
Chairman of an INDEPENDENT OFFICE, created not by
statute but by the Constitution itself. Besides, unlike in the
Alba case, here the Constitution has decreed that the
Chairman and Members of the Commission on Human
Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize
how an office conceived and created by the Constitution to
be independent as the Commission on Human Rights-and
vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and
recommending sanctions as well as remedial measures
therefor, can truly function with independence and
effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the
President. Executive Order No. 163-A, being antithetical to
the constitutional mandate of independence for the
Commission on Human Rights has to be declared
unconstitutional.
The Court is not alone in viewing Executive Order No. 163-
A as containing the seeds of its constitutional destruction.
The proceedings in the 1986 Constitutional Commission
clearly point to its being plainly at war with the constitutional
intent of independence for the Commission. Thus —
MR. GARCIA (sponsor). Precisely, one of
the reasons why it is important for this body
to be constitutionalized is the fact that
regardless of who is the President or who
holds the executive power, the human
rights issue is of such importance that it
should be safeguarded and it should be
independent of political parties or powers
that are actually holding the reins of
government. Our experience during the
martial law period made us realize how
precious those rights are and, therefore,
these must be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact:
Precisely we do not want the term or the
power of the Commission on Human
Rights to be coterminous with the
president, because the President's power
is such that if he appoints a certain
commissioner and that commissioner is
subject to the President, therefore, any
human rights violations committed under
the person's administration will be subject
to presidential pressure. That is what we
would like to avoid — to make the
protection of human rights go beyond the
fortunes of different political parties or
administrations in power. 28
xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam
President. I conferred with the honorable
Chief Justice Concepcion and retired
Justice J.B.L. Reyes and they believe that
there should be an independent
Commission on Human Rights free from
executive influence because many of the
irregularities on human rights violations are
committed by members of the armed
forces and members of the executive
branch of the government. So as to
insulate this body from political
interference, there is a need to
constitutionalize it. 29
xxx xxx xxx
MR. SARMIENTO: On the inquiry on
whether there is a need for this to be
constitutionalized, I would refer to a
previous inquiry that there is still a need for
making this a constitutional body free or
insulated from interference. I conferred
with former Chief Justice Concepcion and
the acting chairman of the Presidential
Committee on Human Rights, retired
Justice J.B.L. Reyes, and they are one in
saying that this body should be
constitutionalized so that it will be free from
executive control or interferences, since
many of the abuses are committed by the
members of the military or the armed
forces. 30
xxx xxx xxx
MR. SARMIENTO. Yes, Congress can
create this body, but as I have said, if we
leave it to Congress, this commission will
be within the reach of politicians and of
public officers and that to me is dangerous.
We should insulate this body from political
control and political interference because
of the nature of its functions to investigate
all forms of human rights violations which
are principally committed by members of
the military, by the Armed Forces of the
Philippines. 31
xxx xxx xxx
MR. GARCIA. The critical factor here is
political control, and normally, when a body
is appointed by Presidents who may
change, the commission must remain
above these changes in political control.
Secondly, the other important factor to
consider are the armed forces, the police
forces which have tremendous power at
their command and, therefore, we would
need a commission composed of men who
also are beyond the reach of these forces
and the changes in political
administration. 32
xxx xxx xxx
MR MONSOD. Yes, It is the committee's
position that this proposed special body, in
order to function effectively, must be
invested with an independence that is
necessary not only for its credibility but also
for the effectiveness of its work. However,
we want to make a distinction in this
Constitution. May be what happened was
that it was referred to the wrong committee.
In the opinion of the committee, this need
not be a commission that is similar to the
three constitutional commissions like the
COA, the COMELEC, and the Civil
Service. It need not be in that article. 33
xxx xxx xxx
MR. COLAYCO. The Commissioners
earlier objection was that the Office of the
President is not involved in the project.
How sure are we that the next President of
the Philippines will be somebody we can
trust? Remember, even now there is a
growing concern about some of the bodies,
agencies and commission created by
President Aquino. 34
xxx xxx xxx
.... Leaving to Congress the creation of the
Commission on Human Rights is giving
less importance to a truly fundamental
need to set up a body that will effectively
enforce the rules designed to uphold
human rights. 35
PETITIONER BAUTISTA MAY OF COURSE BE
REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the
lawful incumbent of the office of Chairman of the
Commission on Human Rights by virtue of her appointment,
as such, by the President on 17 December 1988, and her
acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7)
year term. She certainly can be removed but her removal
must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC, 36 this
Court held that before a rank-and-file employee of the
NASECO, a government-owned corporation, could be
dismissed, she was entitled to a hearing and due process.
How much more, in the case of the Chairman of
a constitutionally mandated INDEPENDENT OFFICE, like
the Commission on Human Rights.
If there are charges against Bautista for misfeasance or
malfeasance in office, charges may be filed against her with
the Ombudsman. If he finds a prima facie case against her,
the corresponding information or informations can be filed
with the Sandiganbayan which may in turn order her
suspension from office while the case or cases against her
are pending before said court. 37 This is due process in
action. This is the way of a government of laws and not of
men.
A FINAL WORD
It is to the credit of the President that, in deference to the
rule of law, after petitioner Bautista had elevated her case
to this Tribunal, Her Excellency merely designated an
Acting Chairman for the Commission on Human Rights
(pending decision in this case) instead of appointing
another permanent Chairman. The latter course would have
added only more legal difficulties to an already difficult
situation.
WHEREFORE, the petition is GRANTED. Petitioner
Bautista is declared to be, as she is, the duly appointed
Chairman of the Commission on Human Rights and the
lawful incumbent thereof, entitled to all the benefits,
privileges and emoluments of said office. The temporary
restraining order heretofore issued by the Court against
respondent Mallillin enjoining him from dismissing or
terminating personnel of the Commission on Human Rights
is made permanent.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco,
Bidin, Cortes and Regalado, JJ., concur.
Fernan, C.J., took no part, having administered petitioner's
oath of office.
Sarmiento, J., took no part, respondent Mallillin is my
godson.
Separate Opinions
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in
the Court, I maintain that it is asking too much to expect a
constitutional ruling which results in absurd or irrational
consequences to ever become settled.
The President and Congress, the appointees concerned,
and the general public may in time accept the Sarmiento III
v. Mison ruling because this Court has the final word on
what constitutional provisions are supposed to mean but the
incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be
disturbed until the meaning of the consent power of the
Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an
amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only
three sentences. The officers specified in the first sentence
clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence
just as clearly do not require confirmation. The problem
area lies with those in the second sentence.
I submit that we should re-examine the three groups of
presidential appointees under the three sentences of
Section 16.
The first group are the heads of executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from colonel or naval captain, and other
officers whose appointments are vested in the President by
the Constitution. The first sentence of Section 16 state they
must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose
appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "all other
officers of the Government whose appointments are not
otherwise provided for by law and those whom he may be
authorized by law to appoint." To which group do they
belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second
sentence of Section 16, I simply cannot associate the
officers mentioned therein as forming part of those referred
to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees
who need confirmation, there would be no need for the
second and third sentences of Section 16. They become
superfluous. Any one not falling under an express listing
would need no confirmation. I think the Court is wrong in
treating two carefully crafted and significant provisions of
the fundamental law as superfluities. Except for the most
compelling reasons, which do not exist here, no
constitutional provision should be considered a useless
surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and
in our earlier dissent, the majority view results in the absurd
consequence where one of several hundred colonels and
naval captains must be confirmed but such important
officers as the Governor of the Central Bank with broad
powers over the nation's economy and future stability or the
Chairman of the Commission on Human Rights whose
office calls for no less than a constitutional mandate do not
have to be scrutinized by the Commission on Appointments.
Why should a minor consul to Timbuktu, Mali need the
thorough scrutiny during the confirmation process while the
Undersecretary of Foreign Affairs who sends him there and
who exercises control over his acts can be appointed by the
President alone? Why should we interpret Section 16 in
such a strange and irrational manner when no strained
construction is needed to give it a logical and more
traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall
also appoint ...." Whenever we see the word "also" in a
sentence, we associate it with preceding sentences, never
with the different sentence that follows. On the other hand,
the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone."
This can only mean that the higher ranking officers in the
second sentence must also be appointed with the
concurrence of the Commission on Appointments. When
the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other
and higher ranking officers as also appointed by
her alone. The strained interpretation by the Court's
majority makes the word "alone" meaningless if the officers
to whom "alone" is not appended are also included in the
third group.
(4) The third sentence of Section 16 requires a positive act
of Congress which vests an appointment in the President
alone before such an appointment is freed from the scrutiny
of the Commission on Appointments. By express
constitutional mandate, it is Congress which determines
who do not need confirmation. Under the majority ruling of
the Court, if Congress creates an important office and
requires the consent of the Commission before a
presidential appointment to that office is perfected, such a
requirement would be unconstitutional. I believe that the
Constitution was never intended to so restrict the
lawmaking power. The Court has no jurisdiction to limit the
plenary lawmaking power of the people's elected
representatives through an implied and, I must again add,
a strained reading of the plain text of Section 16. Any
restriction of legislative power must be categorical, express,
and specific-never implied or forced.
(5) The Constitution specifies clearly the presidential
appointees who do not need confirmation by the
Commission. The reason for non-confirmation is obvious.
The members of the Supreme Court and all lower courts
and the Ombudsman and his deputies are not confirmed
because the Judicial and Bar Council screens nominees
before their names are forwarded to the President. The
Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by
the nation's entire electorate and is only a breath away from
the Presidency. Those falling under the third sentence of
Section 16, Article VII do not have to be confirmed because
the Constitution gives Congress the authority to free lower
ranking officials whose positions are created by law from
that requirement. I believe that we in the Court have no
power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical
words declares as not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the
Commission on Appointments is an important constitutional
body which helps give fuller expression to the democratic
principles inherent in our presidential form of government.
There are those who would render innocuous the
Commission's power or perhaps even move for its abolition
as a protest against what they believe is too much
horsetrading or sectarian politics in the exercise of its
functions. Since the President is a genuinely liked and
popular leader, personally untouched by scandal, who
appears to be motivated only by the sincerest of intentions,
these people would want the Commission to routinely
rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16
for popular Presidents and another interpretation for more
mediocre disliked, and even abusive or dictatorial ones.
Precisely, Section 16 was intended to check abuse or ill-
considered appointments by a President who belongs to the
latter class.
It is not the judiciary and certainly not the appointed
bureaucracy but Congress which truly represents the
people. We should not expect Congress to act only as the
selfless Idealists, the well-meaning technocrats, the
philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and
underprivileged, without the resources or the time to get
publicly involved in the intricate workings of Government,
and often ill-informed or functionally illiterate. These
masses together with the propertied gentry and the elite
class can express their divergent views only through their
Senators and Congressmen. Even the buffoons and
retardates deserve to have their interests considered and
aired by the people's representatives. In the democracy we
have and which we try to improve upon, the Commission on
Appointments cannot be expected to function like a
mindless machine without any debates or even
imperfections. The discussions and wranglings, the delays
and posturing are part of the democratic process. They
should never be used as arguments to restrict legislative
power where the Constitution does not expressly provide
for such a limitation.
The Commission on Human Rights is a very important
office. Our country is beset by widespread insurgency,
marked inequity in the ownership and enjoyment of wealth
and political power, and dangerous conflicts arising from
Ideological, ethnic and religious differences. The tendency
to use force and violent means against those who hold
opposite views appears irresistible to the holders of both
governmental and rebel firepower.
The President is doubly careful in the choice of the
Chairman and Members of the Commission on Human
Rights. Fully aware of the ruling in Sarmiento III v. Mison,
she wants the appointments to be a joint responsibility of
the Presidency and Congress, through the Commission on
Appointments. She wants a more thorough screening
process for these sensitive positions. She wants only the
best to survive the process.
Why should we tell both the President and Congress that
they are wrong.?
Again, I fail to see why the captain of a naval boat ordered
to fire broadsides against rebel concentrations should
receive greater scrutiny in his appointment than the
Chairman of the Human Rights Commission who has
infinitely more power and opportunity to bring the rebellion
to a just and satisfactory end.
But even if I were to agree with the Sarmiento III v.
Mison ruling, I would still include the Chairman of the
Human Rights Commission as one of the "other officers
whose appointments are vested in him in this Constitution"
under the first sentence of Section 16, Article VII. Certainly,
the chairman cannot be appointed by Congress or the
Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head
of an executive department, agency, commission, or board.
The Constitution created the independent office. The
President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from
the Sarmiento III v. Mison ruling and join in the call for a re-
examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in
Sarmiento v. Mison, which was adopted by the Court more
than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the
Commission on Appointments representing both Houses of
the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was
correct after all. I believe it will not be amiss for us too, in a
spirit of humility, to read the Constitution again on the
possibility that we may have misread it before.
The ponencia assumes that we were right the first time and
that the Mison case is settled — there is no need to re-
examine it. It therefore approaches the problem at hand
from another perspective and would sustain the petitioner
on an additional ground.
The theory is that the petitioner's first appointment on 17
December 1988 was valid even if not confirmed,
conformably to Mison, and could not be replaced with the
second appointment on 14 January 1989 because there
was no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the
Court, viz., whether or not the Chairman of the Commission
on Human Rights is subject to confirmation as required now
by both the President of the Philippines and the
Commission on Appointments. In effect, we are asked to
reconsider the Mison ruling in the light of this supervening
significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I
find I am unable to agree. I think we must address the legal
question frontally instead of falling back on a legal sleight-
of hand of now-you-see-it-now-you-don't.
As one who never agreed with the bison ruling in the first
place, I suspect that the seeming diffidence in applying it
categorically to the case at bar is due to a degree of
uneasiness over its correctness. I think this is the reason
another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the
Chairman of the Commission on Human Rights as among
the important officers who would not have to be confirmed
if the majority view were to be followed. By contrast, and
inexplicably, the colonel in the armed forces would need
confirmation although he is not a constitutional officer with
the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the
relatively minor multisectoral representative of the regional
consultative commission, and the Undersecretary of
Foreign Affairs although the consul, who is his subordinate,
would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to
question the wisdom of the Constitution. What I was
questioning was not the wisdom of the Constitution but the
wisdom of our interpretation which I said would lead to
absurd consequences. But only Justice Gutierrez agreed
with me.
Now the chickens have come home to roost. The petitioner
asks us to unequivocally apply our own ruling in Alison, but
we are equivocating. The ponencia would sustain the
petitioner by a circumlocution, such as it is, as if it does not
think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to
the Commission on Appointments is a clear indication that
the President of the Philippines no longer agrees with the
Mison, ruling, at least insofar as it applies to the present
case. Signifi cantly the Commission on Appointments,
which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful
developments must give us pause. We may have
committed an error in Mison, which is bad enough, and may
be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also
unable to accept it. Consistent with my view in Mison, I
submit that what President Aquino extended to the
petitioner on 17 December 1988 was an ad
interim appointment that although immediately effective
upon acceptance was still subject to confirmation. I cannot
agree that when the President said the petitioner could and
enter into the performance of her duties, "all that remained
for Bautista to do was to reject or accept the appointment."
In fact, on the very day it was extended, the ad
interim appointment was submitted by the President of the
Philippines to the Commission on Appointments "for
confirmation."
The ponencia says that the appointment did not need any
confirmation, being the sole act of the President under the
Mison ruling. That would have settled the question quite
conclusively, but the opinion goes on to argue another
justification that I for one find unnecessary, not to say
untenable. I sense here a palpable effort to bolster Mison
because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was
made on 14 January 1989. There is no question that the
petitioner was still validly holding the office by virtue of
her ad interim appointment thereto on 17 December 1988.
The nomination made later was unnecessary because
the ad interim appointment was still effective. When the
Commission on Appointments sent the petitioner the letters
dated 9 January 1989 and 10 January 1989 requiring her to
submit certain data and inviting her to appear before it, it
was acting not on the nomination but on the ad
interimappointment. What was disapproved was
the ad interim appointment, not the nomination. The
nomination of 14 January 1989 is not in issue in this case.
It is entirely immaterial. At best, it is important only as an
affirmation of the President's acknowledgment that the
Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the
President of the Philippines has changed her mind, and with
the expressed support of the Commission on
Appointments, we should docilely submit and reverse
Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could
have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all
I ask
I repeat my view that the Chairman of the Commission on
Human Rights is subject to confirmation by the Commission
on Appointments, for the reasons stated in my dissent in
Mison Accordingly, I vote to DENY the petition.
GRIÑO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the
members of the Commission on Human Rights by the
President require review and confirmation by the
Commission on Appointments in view of the following
provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. The President shall nominate
and, with the consent of the Commission
on Appointments, appoint the heads of the
executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution....
In my view, the "other officers" whose appointments are
vested in the President in the Constitution are
the constitutional officers, meaning those who hold offices
created under the Constitution, and whose appointments
are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of the
Constitutional Commissions, namely: the Civil Service
Commission (Art. IX-B), the Commission on Elections (Art.
IX-C), the Commission on Audit Art. IX-D), and the
Commission on Human Rights (Sec. 17, XIII). These
constitutional commissions are, without excaption, declared
to be "independent," but while in the case of the Civil
Service Commission, the Commission on Elections and the
Commission on Audit, the 1987 Constitution expressly
provides that "the Chairman and the Commissioners shall
be appointed by the President with the consent of the
Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec.
1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is
found in Section 17, Article VIII creating the Commission on
Human Rights. Its absence, however, does not detract
from, or diminish, the President's power to appoint the
Chairman and Commissioners of the said Commission. The
source of that power is the first sentence of Section 16,
Article VII of the Constitution for:
(1) the Commission on Human Rights is an office created
by the Constitution, and
(2) the appointment of the Chairman and Commissioners
thereof is vested in the President by the Constitution.
Therefore, the said appointments shall be made by the
President with the consent of the Commission on
Appointments, as provided in Section 16, Article VII of the
Constitution.
It is not quite correct to argue, as the petitioner does, that
the power of the Commission on Appointments to review
and confirm appointments made by the President is a
"derogation of the Chief Executive's appointing power."
That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic
form of government provided for in our Constitution. As
stated by a respected constitutional authority, former U.P.
Law Dean and President Vicente G. Sinco:
The function of confirming appointments is
part of the power of appointment itself. It is,
therefore, executive rather than legislative
in nature. In giving this power to an organ
of the legislative department, the
Constitution merely provides a detail in the
scheme of checks and balances between
the executive and legislative organs of the
government. (Phil. Political Law by Sinco,
11th ed., p. 266).
WHEREFORE, I vote to dismiss the petition.
Medialdea, J., dissenting:
Separate Opinions
GUTIERREZ, JR., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in
the Court, I maintain that it is asking too much to expect a
constitutional ruling which results in absurd or irrational
consequences to ever become settled.
The President and Congress, the appointees concerned,
and the general public may in time accept the Sarmiento III
v. Mison ruling because this Court has the final word on
what constitutional provisions are supposed to mean but the
incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be
disturbed until the meaning of the consent power of the
Commission on Appointments is straightened out either
through a re-examination of this Court's decision or an
amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only
three sentences. The officers specified in the first sentence
clearly require confirmation by the Commission on
Appointments. The officers mentioned in the third sentence
just as clearly do not require confirmation. The problem
area lies with those in the second sentence.
I submit that we should re-examine the three groups of
presidential appointees under the three sentences of
Section 16.
The first group are the heads of executive departments,
ambassadors, other public ministers and consuls, officers
of the armed forces from colonel or naval captain, and other
officers whose appointments are vested in the President by
the Constitution. The first sentence of Section 16 state they
must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose
appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "all other
officers of the Government whose appointments are not
otherwise provided for by law and those whom he may be
authorized by law to appoint." To which group do they
belong?-Group I requiring confirmation or Group 3 where
confirmation is not needed?
No matter how often and how long I read the second
sentence of Section 16, I simply cannot associate the
officers mentioned therein as forming part of those referred
to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees
who need confirmation, there would be no need for the
second and third sentences of Section 16. They become
superfluous. Any one not falling under an express listing
would need no confirmation. I think the Court is wrong in
treating two carefully crafted and significant provisions of
the fundamental law as superfluities. Except for the most
compelling reasons, which do not exist here, no
constitutional provision should be considered a useless
surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and
in our earlier dissent, the majority view results in the absurd
consequence where one of several hundred colonels and
naval captains must be confirmed but such important
officers as the Governor of the Central Bank with broad
powers over the nation's economy and future stability or the
Chairman of the Commission on Human Rights whose
office calls for no less than a constitutional mandate do not
have to be scrutinized by the Commission on Appointments.
Why should a minor consul to Timbuktu, Mali need the
thorough scrutiny during the confirmation process while the
Undersecretary of Foreign Affairs who sends him there and
who exercises control over his acts can be appointed by the
President alone? Why should we interpret Section 16 in
such a strange and irrational manner when no strained
construction is needed to give it a logical and more
traditional and understandable meaning.?
(3) The second sentence of Section 16 starts with, "He shall
also appoint ...." Whenever we see the word "also" in a
sentence, we associate it with preceding sentences, never
with the different sentence that follows. On the other hand,
the third sentence specifies "other officers lower in rank'
who are appointed pursuant to law by the President "alone."
This can only mean that the higher ranking officers in the
second sentence must also be appointed with the
concurrence of the Commission on Appointments. When
the Constitution requires Congress to specify who may be
appointed by the President alone, we should not add other
and higher ranking officers as also appointed by
her alone. The strained interpretation by the Court's
majority makes the word "alone" meaningless if the officers
to whom "alone" is not appended are also included in the
third group.
(4) The third sentence of Section 16 requires a positive act
of Congress which vests an appointment in the President
alone before such an appointment is freed from the scrutiny
of the Commission on Appointments. By express
constitutional mandate, it is Congress which determines
who do not need confirmation. Under the majority ruling of
the Court, if Congress creates an important office and
requires the consent of the Commission before a
presidential appointment to that office is perfected, such a
requirement would be unconstitutional. I believe that the
Constitution was never intended to so restrict the
lawmaking power. The Court has no jurisdiction to limit the
plenary lawmaking power of the people's elected
representatives through an implied and, I must again add,
a strained reading of the plain text of Section 16. Any
restriction of legislative power must be categorical, express,
and specific-never implied or forced.
(5) The Constitution specifies clearly the presidential
appointees who do not need confirmation by the
Commission. The reason for non-confirmation is obvious.
The members of the Supreme Court and all lower courts
and the Ombudsman and his deputies are not confirmed
because the Judicial and Bar Council screens nominees
before their names are forwarded to the President. The
Vice-President as a cabinet member needs no confirmation
because the Constitution says so. He or she is chosen by
the nation's entire electorate and is only a breath away from
the Presidency. Those falling under the third sentence of
Section 16, Article VII do not have to be confirmed because
the Constitution gives Congress the authority to free lower
ranking officials whose positions are created by law from
that requirement. I believe that we in the Court have no
power to add by implication to the list of presidential
appointees whom the Constitution in clear and categorical
words declares as not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the
Commission on Appointments is an important constitutional
body which helps give fuller expression to the democratic
principles inherent in our presidential form of government.
There are those who would render innocuous the
Commission's power or perhaps even move for its abolition
as a protest against what they believe is too much
horsetrading or sectarian politics in the exercise of its
functions. Since the President is a genuinely liked and
popular leader, personally untouched by scandal, who
appears to be motivated only by the sincerest of intentions,
these people would want the Commission to routinely
rubberstamp those whom she appoints to high office.
Unfortunately, we cannot have one reading of Section 16
for popular Presidents and another interpretation for more
mediocre disliked, and even abusive or dictatorial ones.
Precisely, Section 16 was intended to check abuse or ill-
considered appointments by a President who belongs to the
latter class.
It is not the judiciary and certainly not the appointed
bureaucracy but Congress which truly represents the
people. We should not expect Congress to act only as the
selfless Idealists, the well-meaning technocrats, the
philosophers, and the coffee-shop pundits would have it
move. The masses of our people are poor and
underprivileged, without the resources or the time to get
publicly involved in the intricate workings of Government,
and often ill-informed or functionally illiterate. These
masses together with the propertied gentry and the elite
class can express their divergent views only through their
Senators and Congressmen. Even the buffoons and
retardates deserve to have their interests considered and
aired by the people's representatives. In the democracy we
have and which we try to improve upon, the Commission on
Appointments cannot be expected to function like a
mindless machine without any debates or even
imperfections. The discussions and wranglings, the delays
and posturing are part of the democratic process. They
should never be used as arguments to restrict legislative
power where the Constitution does not expressly provide
for such a limitation.
The Commission on Human Rights is a very important
office. Our country is beset by widespread insurgency,
marked inequity in the ownership and enjoyment of wealth
and political power, and dangerous conflicts arising from
Ideological, ethnic and religious differences. The tendency
to use force and violent means against those who hold
opposite views appears irresistible to the holders of both
governmental and rebel firepower.
The President is doubly careful in the choice of the
Chairman and Members of the Commission on Human
Rights. Fully aware of the ruling in Sarmiento III v. Mison,
she wants the appointments to be a joint responsibility of
the Presidency and Congress, through the Commission on
Appointments. She wants a more thorough screening
process for these sensitive positions. She wants only the
best to survive the process.
Why should we tell both the President and Congress that
they are wrong.?
Again, I fail to see why the captain of a naval boat ordered
to fire broadsides against rebel concentrations should
receive greater scrutiny in his appointment than the
Chairman of the Human Rights Commission who has
infinitely more power and opportunity to bring the rebellion
to a just and satisfactory end.
But even if I were to agree with the Sarmiento III v.
Mison ruling, I would still include the Chairman of the
Human Rights Commission as one of the "other officers
whose appointments are vested in him in this Constitution"
under the first sentence of Section 16, Article VII. Certainly,
the chairman cannot be appointed by Congress or the
Supreme Court. Neither should we read Article XIII of the
Constitution as classifying the chairman among the lower
ranking officers who by law may be appointed by the head
of an executive department, agency, commission, or board.
The Constitution created the independent office. The
President was intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from
the Sarmiento III v. Mison ruling and join in the call for a re-
examination of its doctrine.
CRUZ, J., dissenting:
This is as good a time as any to re-examine our ruling in
Sarmiento v. Mison, which was adopted by the Court more
than a year ago over two dissents. The President of the
Philippines has taken a second look at it, and so too has the
Commission on Appointments representing both Houses of
the Congress of the Philippines. It appears that they are not
exactly certain now that the decision in that case was
correct after all. I believe it will not be amiss for us too, in a
spirit of humility, to read the Constitution again on the
possibility that we may have misread it before.
The ponencia assumes that we were right the first time and
that the Mison case is settled—there is no need to re-
examine it. It therefore approaches the problem at hand
from another perspective and would sustain the petitioner
on an additional ground.
The theory is that the petitioner's first appointment on 17
December 1988 was valid even if not confirmed,
conformably to Mison, and could not be replaced with the
second appointment on 14 January 1989 because there
was no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the
Court, viz., whether or not the Chairman of the Commission
on Human Rights is subject to confirmation as required now
by both the President of the Philippines and the
Commission on Appointments. In effect, we are asked to
reconsider the Mison ruling in the light of this supervening
significant albeit decidedly not controlling circumstance.
The majority makes its ratiocination sound so simple, but I
find I am unable to agree. I think we must address the legal
question frontally instead of falling back on a legal sleight-
of hand of now-you-see-it-now-you-don't.
As one who never agreed with the bison ruling in the first
place, I suspect that the seeming diffidence in applying it
categorically to the case at bar is due to a degree of
uneasiness over its correctness. I think this is the reason
another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the
Chairman of the Commission on Human Rights as among
the important officers who would not have to be confirmed
if the majority view were to be followed. By contrast, and
inexplicably, the colonel in the armed forces would need
confirmation although he is not a constitutional officer with
the serious responsibilities of the former. Also not to be
confirmed are the Governor of the Central Bank unlike the
relatively minor multisectoral representative of the regional
consultative commission, and the Undersecretary of
Foreign Affairs although the consul, who is his subordinate,
would need confirmation. When I pointed to these
incongruous situations, I was told it was not our place to
question the wisdom of the Constitution. What I was
questioning was not the wisdom of the Constitution but the
wisdom of our interpretation which I said would lead to
absurd consequences. But only Justice Gutierrez agreed
with me.
Now the chickens have come home to roost. The petitioner
asks us to unequivocally apply our own ruling in Alison, but
we are equivocating. The ponencia would sustain the
petitioner by a circumlocution, such as it is, as if it does not
think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to
the Commission on Appointments is a clear indication that
the President of the Philippines no longer agrees with the
Mison, ruling, at least insofar as it applies to the present
case. Signifi cantly the Commission on Appointments,
which was also aware of Mison, has as clearly rejected it by
acting on the appointment. These meaningful
developments must give us pause. We may have
committed an error in Mison, which is bad enough, and may
be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also
unable to accept it. Consistent with my view in Mison, I
submit that what President Aquino extended to the
petitioner on 17 December 1988 was an ad
interim appointment that although immediately effective
upon acceptance was still subject to confirmation. I cannot
agree that when the President said the petitioner could and
enter into the performance of her duties, "all that remained
for Bautista to do was to reject or accept the appointment."
In fact, on the very day it was extended, the ad
interim appointment was submitted by the President of the
Philippines to the Commission on Appointments "for
confirmation."
The ponencia says that the appointment did not need any
confirmation, being the sole act of the President under the
Mison ruling. That would have settled the question quite
conclusively, but the opinion goes on to argue another
justification that I for one find unnecessary, not to say
untenable. I sense here a palpable effort to bolster Mison
because of the apprehension that it is falling apart.
Of course, there was no vacancy when the nomination was
made on 14 January 1989. There is no question that the
petitioner was still validly holding the office by virtue of
her ad interim appointment thereto on 17 December 1988.
The nomination made later was unnecessary because
the ad interim appointment was still effective. When the
Commission on Appointments sent the petitioner the letters
dated 9 January 1989 and 10 January 1989 requiring her to
submit certain data and inviting her to appear before it, it
was acting not on the nomination but on the ad
interimappointment. What was disapproved was
the ad interim appointment, not the nomination. The
nomination of 14 January 1989 is not in issue in this case.
It is entirely immaterial. At best, it is important only as an
affirmation of the President's acknowledgment that the
Chairman of the Commission on Human Rights must be
confirmed under Article VII, Section 16 of the Constitution.
It does not follow, of course, that simply because the
President of the Philippines has changed her mind, and with
the expressed support of the Commission on
Appointments, we should docilely submit and reverse
Mison. That is not how democracy works. The Court is
independent. I do suggest, however, that the majority could
have erred in that case and that the least we can do now is
to take a more careful look at the decision. Let us check our
bearings to make sure we have not gone astray. That is all
I ask
I repeat my view that the Chairman of the Commission on
Human Rights is subject to confirmation by the Commission
on Appointments, for the reasons stated in my dissent in
Mison Accordingly, I vote to DENY the petition.
GRIÑO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the
members of the Commission on Human Rights by the
President require review and confirmation by the
Commission on Appointments in view of the following
provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. The President shall nominate
and, with the consent of the Commission
on Appointments, appoint the heads of the
executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
 officers whose appointments are vested in 6) G.R. No. L-33964 December 11, 1971
him in this Constitution....
IN THE MATTER OF THE PETITION FOR HABEAS
In my view, the "other officers" whose appointments are CORPUS OF TEODOSIO LANSANG RODOLFO DEL
vested in the President in the Constitution are ROSARIO, and BAYANI ALCALA, petitioners,
the constitutional officers, meaning those who hold offices vs.
created under the Constitution, and whose appointments BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief,
are not otherwise provided for in the Charter. Those Philippine Constabulary, respondent.
constitutional officers are the chairmen and members of the
Constitutional Commissions, namely: the Civil Service G.R. No. L-33965 December 11, 1971
Commission (Art. IX-B), the Commission on Elections (Art.
IX-C), the Commission on Audit Art. IX-D), and the ROGELIO V. ARIENDA, petitioner,
Commission on Human Rights (Sec. 17, XIII). These
constitutional commissions are, without excaption, declared
to be "independent," but while in the case of the Civil vs.
Service Commission, the Commission on Elections and the
Commission on Audit, the 1987 Constitution expressly SECRETARY OF NATIONAL DEFENSE, and CHIEF,
provides that "the Chairman and the Commissioners shall PHIL. CONSTABULARY, respondents.
be appointed by the President with the consent of the
Commission on Appointments" (Sec. 1[2], Art. IX-B; Sec. G.R. No. L-33973 December 11, 1971
1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is
found in Section 17, Article VIII creating the Commission on LUZVIMINDA DAVID, petitioner,
Human Rights. Its absence, however, does not detract
from, or diminish, the President's power to appoint the
vs.
Chairman and Commissioners of the said Commission. The
source of that power is the first sentence of Section 16,
Article VII of the Constitution for: GEN. EDUARDO GARCIA, in his capacity as Chief,
Philippine Constabulary, COL. N. C. CAMELLO, in his
capacity as Chief of Staff, Philippine Constabulary and
(1) the Commission on Human Rights is an office created
HON. JUAN PONCE ENRILE in his capacity as
by the Constitution, and
Secretary, Department of National
defense, respondents.
(2) the appointment of the Chairman and Commissioners
thereof is vested in the President by the Constitution.
G.R. No. L-33982 December 11, 1971
Therefore, the said appointments shall be made by the
IN THE MATTER OF THE PETITION FOR HABEAS
President with the consent of the Commission on
CORPUS OF NEMESIO E. PRUDENTE FELICIDAD G.
Appointments, as provided in Section 16, Article VII of the
PRUDENTE, petitioners,
Constitution.

vs.
It is not quite correct to argue, as the petitioner does, that
the power of the Commission on Appointments to review
and confirm appointments made by the President is a GENERAL MANUEL YAN, GEN. EDU
"derogation of the Chief Executive's appointing power." GARCIA, respondents.
That power is given to the Commission on Appointments as
part of the system of checks and balances in the democratic G.R. No. L-34004 December 11, 1971
form of government provided for in our Constitution. As
stated by a respected constitutional authority, former U.P. IN THE MATTER OF THE APPLICATION FOR HABEAS
Law Dean and President Vicente G. Sinco: CORPUSIN BEHALF OF GERARDO TOMAS, ALSO
KNOWN AS "GERRY TOMAS" AND FOR RETURN OF
The function of confirming appointments is DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE
part of the power of appointment itself. It is, LARA, in his capacity as Chairman, Committee on
therefore, executive rather than legislative Legal Assistance, Philippine Bar
in nature. In giving this power to an organ Association, petitioner,
of the legislative department, the
Constitution merely provides a detail in the vs.
scheme of checks and balances between
the executive and legislative organs of the BRIG. GENERAL EDUARDO M. GARCIA, CHIEF,
government. (Phil. Political Law by Sinco, PHILIPPINE CONSTABULARY, respondent.
11th ed., p. 266).
G.R. No. L-34013 December 11, 1971
WHEREFORE, I vote to dismiss the petition.
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the
Philippine Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS
CORPUSIN BEHALF OF SGT. FILOMENO M. DE
CASTRO AND HIS WIFE, MRS. BARCELISA C. DE
CASTRO. CARLOS C. RABAGO, in his capacity as
President of the Conference Delegates Association of
the Philippines (CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS
CORPUS OF ANTOLIN ORETA, JR. ANTOLIN ORETA,
JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO
OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE
OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief,
Philippine Constabulary, et al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto
E. Tañada, Fortunato de Leon, R. G. Suntay and Juan T.
David for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.
Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos
Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary
Olivar, etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner
Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and
Assistant Solicitor General Bernardo P. Pardo for
respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while
the Liberal Party of the Philippines was holding a public
meeting at Plaza Miranda, Manila, for the presentation of its
candidates in the general elections scheduled for
November 8, 1971, two (2) hand grenades were thrown,
one after the other, at the platform where said candidates
and other persons were. As a consequence, eight (8)
persons were killed and many more injured, including
practically all of the aforementioned candidates, some of
whom sustained extensive, as well as serious, injuries
which could have been fatal had it not been for the timely
medical assistance given to them.
On August 23, soon after noontime, the President of the
Philippines announced the issuance of Proclamation No.
889, dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully
evaluated information, it is definitely
established that lawless elements in the
country, which are moved by common or
similar ideological conviction, design and
goal and enjoying the active moral and
material support of a foreign power and
being guided and directed by a well trained,
determined and ruthless group of men and
taking advantage of our constitutional
liberties to promote and attain their ends,
have entered into a conspiracy and have in
fact joined and banded their forces
together for the avowed purpose of actually
staging, undertaking and waging an armed
insurrection and rebellion in order to
forcibly seize political power in this country,
overthrow the duly constituted
government, and supplant our existing
political social, economic and legal order
with an entirely new one whose form of
government, whose system of laws, whose
conception of God and religion, whose
notion of individual rights and family
relations, and whose political, social and
economic precepts are based on the
Marxist-Leninist-Maoist teachings and
beliefs;
WHEREAS, these lawless elements,
acting in concert through front
organizations that are seemingly innocent
and harmless, have continuously and
systematically strengthened and
 broadened their memberships through
sustained and careful recruiting and
enlistment of new adherents from among
our peasantry, laborers, professionals,
intellectuals, students, and mass media
personnel, and through such sustained
and careful recruitment and enlistment
have succeeded in infiltrating almost every
segment of our society in their ceaseless
determination to erode and weaken the
political, social, economic and moral
foundations of our existing government
and to influence many peasant, labor,
professional, intellectual, student and
mass media organizations to commit acts
of violence and depredations against our
duly constituted authorities, against the
members of our law enforcement
agencies, and worst of all, against the
peaceful members of our society;
WHEREAS, these lawless elements have
created a state of lawlessness and disorder
affecting public safety and the security of
the State, the latest manifestation of which
has been the dastardly attack on the
Liberal Party rally in Manila on August 21,
1971, which has resulted in the death and
serious injury of scores of persons;
WHEREAS, public safety requires that
immediate and effective action be taken in
order to maintain peace and order, secure
the safety of the people and preserve the
authority of the State;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested upon me by
Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the
privilege of the writ of habeas corpus, for
the persons presently detained, as well as
others who may be hereafter similarly
detained for the crimes of insurrection or
rebellion, and all other crimes and offenses
committed by them in furtherance or on the
occasion thereof, or incident thereto, or in
connection therewith.
Presently, petitions for writ of habeas corpus were filed, in
the above-entitled cases, by the following persons, who,
having been arrested without a warrant therefor and then
detained, upon the authority of said proclamation, assail its
validity, as well as that of their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and
BAYANI ALCALA, the petitioners in Case No. L-33964 —
filed on August 24, 1971 — who, on August 22, 1971,
between 8 a.m. and 6 p.m., were "invited" by agents of the
Philippine Constabulary — which is under the command of
respondent Brig. Gen. Eduardo M. Garcia — to go and did
go to the headquarters of the Philippine Constabulary, at
Camp Crame, Quezon City, for interrogation, and
thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-
33965 — filed, also, on August 24, 1971 — who was picked
up in his residence, at No. 55 Road, 3, Urduja Village,
Quezon City, by members of the Metrocom and then
detained;
3. Soon after the filing of the petition in Case No. L-33965
— or on August 28, 1971 — the same was amended to
include VICENTE ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from stating that these
additional petitioners are temporarily residing with the
original petitioner, Rogelio V. Arienda, the amended petition
alleged nothing whatsoever as regards the circumstances
under which said Vicente Ilao and Juan Carandang are said
to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 —
filed on August 25, 1971 — who was similarly arrested in
his residence, at No. 131-B Kamias Road, Quezon City, and
detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No.
L-33982 — on August 27, 1971 — upon the ground that her
father, Dr. NEMESIO E. PRUDENTE, had, on August 22,
1971, at about 8 p.m., been apprehended by Constabulary
agents in his house, at St. Ignatius Village, Quezon City,
and then detained at the Camp Crame stockade, Quezon
City;
6. ANGELO DE LOS REYES, who was allowed — on
August 30, 1971 — to intervene as one of the petitioners in
Cases Nos. L-33964, L-33965 and L-33973, he having
been arrested by members of the Constabulary on August
22, 1971, between 6:30 and 7:30 p.m., in his residence, at
86 Don Manuel Street, Sta. Mesa Heights, Quezon City,
and brought to Camp Crame, Quezon City, where he is
detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene
as one of the petitioners in said three (3) cases, upon the
ground that, on August 23, 1971, at about 8 a.m., he was,
likewise, apprehended at Sta. Rosa, Laguna, by members
of the Philippine Constabulary and brought, first to the
Constabulary headquarters at Canlubang, Laguna, and,
then, to Camp Crame, Quezon City, where he is detained
and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene
as one of the petitioners in the same three (3) cases, he
having been arrested in his residence, at 318 Lakandula St.,
Angeles City, on August 22, 1971, between 6 and 7 p.m.,
and taken to the PC offices at Sto. Domingo, Angeles City,
then to Camp Olivas, San Fernando, Pampanga, and
eventually to Camp Crame, Quezon City, where he is
restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old
second year college students of St. Louis University, Baguio
City, on whose behalf, Domingo E. de Lara — in his
capacity as Chairman, Committee on Legal Assistance,
Philippine Bar Association — filed on September 3, 1971,
the petition in Case No. L-34004, upon the ground that said
Gerardo Tomas had, on August 23, 1971, at about 6 a.m.,
been arrested by Constabulary agents, while on his way to
school in the City of Baguio, then brought to the
Constabulary premises therein at Camp Holmes, and,
thereafter, taken, on August 24, 1971, to Camp Olivas,
Pampanga, and thence, on August 25, 1971, to the
Constabulary headquarters at Camp Crame, Quezon City,
where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013
— filed on September 7, 1971 — a 19-year old student of
the U.P. College in Baguio city — who, while allegedly on
his way home, at Lukban Road, Baguio, on August 23,
1971, at about 1 a.m., was joined by three (3) men who
brought him to the Burnham Park, thence, to Camp Olivas
at San Fernando, Pampanga, and, thereafter, to Camp
Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs.
BARCELISA C. DE CASTRO, on whose behalf Carlos C.
Rabago — as President of the Conference Delegates
Association of the Philippines (CONDA) — filed the petition
in Case No. L-34039 — on September 14, 1971 — against
Gen. Eduardo M. Garcia, alleging that, on August 27, 1971,
at about 3 p.m., Mrs. De Castro was arrested, while at
Liamzon Subdivision, Rosario, Pasig, Rizal, by agents of
the Constabulary, and taken to the PC headquarters at
Camp Crame, where, later, that same afternoon, her
husband was brought, also, by PC agents and both are
detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case
No. L-34265 — on October 26, 1971 — against said Gen.
Garcia, as Chief of the Constabulary, and Col. Prospero
Olivas, Chief of the Central Intelligence Service (CIS),
Philippine Constabulary, alleging that, upon invitation from
said CIS, he went, on October 20, 1971, to Camp
Aguinaldo, Quezon City, to see Gen. Manuel Yan, Chief of
Staff of the Armed Forces of the Philippines, who referred
petitioner to Col. Laroya of the CIS; that the latter, in turn,
referred him to CIS Investigator Atty. Berlin Castillo and
another CIS against, whose name is unknown to the
petitioner; and that, after being interrogated by the two (2),
petitioner was detained illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed
on November 10, 1971 — who was apprehended, by
agents of the Constabulary, in the evening of November 8,
1941, in Quezon City, and then detained at Camp Crame,
in the same City.
Upon the filing of the aforementioned cases, the
respondents were forthwith required to answer the petitions
therein, which they did. The return and answer in L-33964
— which was, mutatis mutandis, reproduced substantially
or by reference in the other cases, except L-34265 —
alleges, inter alia, that the petitioners had been
apprehended and detained "on reasonable belief" that they
had "participated in the crime of insurrection or rebellion;"
that "their continued detention is justified due to the
suspension of the privilege of the writ of habeas
corpus pursuant to Proclamation No. 889 of the President
of the Philippines;" that there is "a state of insurrection or
rebellion" in this country, and that "public safety and the
security of the State required the suspension of the privilege
of the writ of habeas corpus," as "declared by the President
of the Philippines in Proclamation No. 889; that in making
said declaration, the "President of the Philippines acted on
relevant facts gathered thru the coordinated efforts of the
various intelligence agents of our government but (of) which
the Chief Executive could not at the moment give a full
account and disclosure without risking revelation of highly
classified state secrets vital to its safely and security"; that
the determination thus made by the President is "final and
conclusive upon the court and upon all other persons" and
"partake(s) of the nature of political question(s) which
cannot be the subject of judicial inquiry," pursuant to
Barcelon v. Baker, 5 Phil. 87, and Montenegro v.
Castañeda, 91 Phil. 882; that petitioners "are under
detention pending investigation and evaluation of
culpabilities on the reasonable belief" that they "have
committed, and are still committing, individually or in
conspiracy with others, engaged in armed struggle,
insurgency and other subversive activities for the overthrow
of the Government; that petitioners cannot raise, in these
proceedings for habeas corpus, "the question of their guilt
or innocence"; that the "Chief of Constabulary had
petitioners taken into custody on the basis of the existence
of evidence sufficient to afford a reasonable ground to
believe that petitioners come within the coverage of persons
to whom the privilege of the writ of habeas corpus has been
suspended"; that the "continuing detention of the petitioners
as an urgent bona fide precautionary and preventive
measure demanded by the necessities of public safety,
public welfare and public interest"; that the President of the
Philippines has "undertaken concrete and abundant steps
to insure that the constitutional rights and privileges of the
petitioners as well as of the other persons in current
confinement pursuant to Proclamation 889 remain
unimpaired and unhampered"; and that "opportunities or
occasions for abuses by peace officers in the
implementation of the proclamation have been greatly
minimized, if not completely curtailed, by various
safeguards contained in directives issued by proper
authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National
Defense, dated August 21, 1971, directing, inter alia, in
connection with the arrest or detention of suspects pursuant
to Proclamation No. 889, that, except when caught
inflagrante delicto, no arrest shall be made without warrant
authorized in writing by the Secretary of National Defense;
that such authority shall not be granted unless, "on the basis
of records and other evidences," it appears satisfactorily, in
accordance with Rule 113, section 6(b), of the Rules of
Court, that the person to be arrested is probably guilty of
the acts mentioned in the proclamation; that, if such person
will be charged with a crime subject to an afflictive penalty
under the Anti-Subversion Act, the authorization for his
arrest shall not be issued unless supported by signed
intelligence reports citing at least one reliable witness to the
same overt act; that no unnecessary or unreasonable force
shall be used in effecting arrests; and that arrested persons
shall not be subject to greater restraint than is necessary for
their detention;
2. Communications of the Chief of the Constabulary, dated
August 23, 27, and 30, 1971, to all units of his command,
stating that the privilege of the writ is suspended for no other
persons than those specified in the proclamation; that the
same does not involve material law; that precautionary
measures should be taken to forestall violence that may be
precipitated by improper behavior of military personnel; that
authority to cause arrest under the proclamation will be
exercised only by the Metrocom, CMA, CIS, and "officers
occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall
be accorded fair and humane treatment; and that members
of the detainee's immediate family shall be allowed to visit
him twice a week;
3. A memorandum of the Department of National Defense,
dated September 2, 1971, directing the Chief of the
Constabulary to establish appropriate Complaints and
Action Bodies/Groups to prevent and/or check any abuses
in connection with the suspension of the privilege of the writ;
and
4. Executive Order No. 333, dated August 26, 1971,
creating a Presidential Administrative Assistance
Committee to hear complaints regarding abuses committed
in connection with the implementation of Proclamation No.
889.
Respondents in L-33965 further alleged that therein
petitioners Vicente Ilao and Juan Carandang had been
released from custody on August 31, 1971, "after it had
been found that the evidence against them was
insufficient."
In L-34265, the "Answer and Return" filed by respondents
therein traversed some allegations of fact and conclusions
of law made in the petition therein and averred that Antolin
Oreta, Jr., the petitioner therein, had been and is detained
"on the basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or
insurrection against the government" and, accordingly,
"comes within the class of persons as to whom the privilege
of the writ of habeas corpus has been suspended by
Proclamation No. 889, as amended," the validity of which is
not contested by him.
On August 30, 1971, the President issued Proclamation No.
889-A, amending Proclamation No. 889, so as to read as
follows:
WHEREAS, on the basis of carefully
evaluated information, it is definitely
established that lawless elements in the
country, which are moved by common or
similar ideological conviction, design and
goal and enjoying the active moral and
material support of a foreign power and
being guided and directed by a well-
trained, determined and ruthless group of
men and taking advantage of our
constitutional liberties to promote and
attain their ends, have entered into a
conspiracy and have in fact joined and
banded their forces together for the
avowed purpose of [actually] staging,
undertaking, [and] wagging and
are actually engaged in an armed
insurrection and rebellion in order to
forcibly seize political power in this country,
overthrow the duly constituted
government, and supplant our existing
political, social, economic and legal order
with an entirely new one whose form of
government, whose system of laws, whose
conception of God and religion, whose
notion of individual rights and family
relations, and whose political, social and
economic precepts are based on the
Marxist-Leninist-Maoist teaching and
beliefs;
WHEREAS, these lawless elements,
acting in concert through front
organizations that are seemingly innocent
and harmless, have continuously and
systematically strengthened and
broadened their memberships through
sustained and careful recruiting and
enlistment of new adherents from among
our peasantly, laborers, professionals,
intellectuals, students, and mass media
personnel, and through such sustained
and careful recruitment and enlistment
have succeeded in infiltrating almost every
segment of our society in their ceaseless
determination to erode and weaken the
political, social, economic and moral
foundations of our existing government
and influence many peasant, labor,
professional, intellectual, student and
mass media organizations to commit acts
of violence and depredations against our
duly constituted authorities, against the
members of our law enforcement
agencies, and worst of all, against the
peaceful members of our society;
WHEREAS, these lawless elements, by
their acts of rebellion and insurrection,
have created a state of lawlessness and
disorder affecting public safety and
security of the State, the latest
manifestation of which has been the
dastardly attack on the Liberal Party rally in
Manila on August 21, 1971, which has
resulted in the death and serious injury of
scores of persons;
 WHEREAS, public safety requires that 5. Lipa 14. Bais
immediate and effective action be taken in 6. Puerto Princesa 15. Dumaguete
order to maintain peace and order, secure 7. San Carlos (Negros 16. Iloilo
the safety of the people and preserve the Occ.) 17. Roxas
authority of the State; 8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu
NOW THEREFORE, I, FERDINAND E. 20. Cebu 24. Tacloban
MARCOS, President of the Philippines, by 21. Mandaue 25. Ormoc
virtue of the powers vested upon me by 22. Danao 26. Calbayog
Article VII, Section 10, Paragraph (2) of the 23. Toledo
Constitution, do hereby suspend the
privilege of the writ of habeas corpus for
the persons presently detained, as well as On September 25, 1971, the President issued Proclamation
all others who may be hereafter similarly No. 889-C, restoring the privilege of the writ in the following
detained for the crimes of insurrection or provinces and cities:
rebellion [,] and [all] other [crimes and
offenses] overt acts committed by them in A. PROVINCES:
furtherance [or on the occasion] thereof[,].
[or incident thereto, or in connection 1. Surigao del Norte 8. Agusan del Sur
therewith.]1
2. Surigao del Sur 9. Misamis Or.
On September 1, 1971, Cases Nos. L-33964, L-33965, L- 3. Davao del Norte 10. Misamis Occ.
33973 and L-33982 were jointly heard and then the parties 4. Davao del Sur 11. Zamboanga del Norte
therein were allowed to file memoranda, which were 5. Davao Oriental 12. Basilan
submitted from September 3 to September 9, 1971. 6. Bukidnon 13. Pagadian
7. Agusan del Norte
Soon thereafter, or on September 18, 1971, Proclamation
No. 889 was further amended by Proclamation No. 889-B,
lifting the suspension of the privilege of the writ of habeas B. CITIES:
corpus in the following provinces, sub-provinces and cities
of the Philippine, namely: 1. Surigao 8. Tangub
2. Davao 9. Dapitan
A. PROVINCES:
3. Butuan 1 0. Dipolog
1. Batanes 15. Negros Occ.
4. Cagayan 11. Zamboanga
2. Ilocos Norte 16. Negros Or. 5. Gingoong 12. Basilan
3.Ilocos Sur 17. Cebu 6. Ozamiz 13. Pagadian.
4.Abra 18. Bohol 7. Oroquieta
5. Abra 19. Capiz
6. Pangasinan 20. Aklan On October 4, 1971, the suspension of the privilege was
7. Batangas 21. Antique further lifted by Proclamation No. 889-D, in the following
8. Catanduanes 22. Iloilo places:
9. Masbate 23. Leyte
10. Romblon 24. Leyte del Sur A. PROVINCES:
11. Marinduque 25. Northern Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Western Samar
1. Cagayan 5. Camarines
14. Palawan. 2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
B. SUB-PROVINCES: 4. Kalinga-Apayao

1.Guimaras 3. Siquior B. CITIES:

2. Biliran
1. Cavite City 3. Trece Martires
C. CITIES:
2. Tagaytay 4. Legaspi
1. Laog 10. Bacolod
2. Dagupan 11. Bago
3. San Carlos 12. Canlaon
As a consequences, the privilege of the writ of habeas
4. Batangas 13. La Carlota
corpus is still suspended in the following eighteen (18)
provinces, two (2) sub-provinces and eighteen (18) cities, ... a majority of the Court having tentatively
to wit: arrived at a consensus that it may inquire
in order to satisfy itself of the existence of
A. PROVINCE: the factual bases for the issuance of
Presidential Proclamations Nos. 889 and
889-A (suspending the privilege of the writ
1. Bataan 10. North Cotabato of habeas corpus for all persons detained
2. Benguet 11. Nueva Ecija or to be detained for the crimes of rebellion
3. Bulacan 12. Pampanga or insurrection throughout the Philippines,
which area has lately been reduced to
4. Camarines Sur 13. Quezon
some eighteen provinces, two
5. Ifugao 14. Rizal subprovinces and eighteen cities with the
6. Isabela 15. South Cotabato partial lifting of the suspension of the
7. Laguna 16. Tarlac privilege effected by Presidential
Proclamations Nos. 889-B, 889-C and 889-
8. Lanao del Norte 17. Zambales D) and thus determine the constitutional
9. Lanao del Norte sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14,
B. SUB-PROVINCES: and Article VII, sec. 10, par. 2, of the
Philippine Constitution; and considering
1. Aurora 2. Quirino that the members of the Court are not
agreed on the precise scope and nature of
the inquiry to be made in the premises,
C. CITIES:
even as all of them are agreed that the
Presidential findings are entitled to great
1. Angeles 10. Manila respect, the Court RESOLVED that these
2. Baguio 11. Marawi cases be set for rehearing on October 8,
1971 at 9:30 A.M.
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo xxx xxx xxx
5. Cotabato 14. Palayan
6. General Santos 15. Pasay On October 8, 1971, said four cases were, therefore, heard,
7. Iligan 16. Quezon once again, but, this time jointly with cases Nos. L-34004,
L-34013, and L-34039, and the parties were then granted a
8 Iriga 17. San Jose
period to file memoranda, in amplification of their respective
9 Lucena 18. San Pablo oral arguments, which memoranda were submitted from
October 12 to October 21, 1971.
The first major question that the Court had to consider was
whether it would adhere to the view taken in Barcelon v. Respondents having expressed, during the oral arguments,
Baker,2 and reiterated in Montenegro v. on September 1 and October 8, 1971, their willingness to
Castañeda,3 pursuant to which, "the authority to decide impart to the Court classified information relevant to these
whether the exigency has arisen requiring suspension (of cases, subject to appropriate security measures, the Court
the privilege of the writ of habeas corpus) belongs to the met at closed doors, on October 28 and 29, 1971, and, in
President and his 'decision is final and conclusive' upon the the presence of three (3) attorneys for the petitioners,
courts and upon all other persons." Indeed, had said chosen by the latter, namely, Senator Jose W. Diokno,
question been decided in the affirmative the main issue in Senator Salvador H. Laurel, and Atty. Leopoldo Africa, as
all of these cases, except well as of the Solicitor General and two (2) members of his
L-34339, would have been settled, and, since the other staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the
issues were relatively of minor importance, said cases could Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy
have been readily disposed of. Upon mature deliberation, a Chief of Staff, Gen. Felizardo Tanabe, Col. Tagumpay
majority of the Members of the Court had, however, Nanadiego, Judge Advocate General, JAGS (GSC), and
reached, although tentatively, a consensus to the contrary, other ranking officers of said Armed Forces, on said
and decided that the Court had authority to and should classified information, most of which was contained in
inquire into the existence of the factual bases required by reports and other documents already attached to the
the Constitution for the suspension of the privilege of the records. During the proceedings, the members of the Court,
writ; but before proceeding to do so, the Court deemed it and, occassionally, counsel for the petitioners, propounded
necessary to hear the parties on the nature and extent of pertinent questions to said officers of the Armed Forces.
the inquiry to be undertaken, none of them having Both parties were then granted a period of time within which
previously expressed their views thereof. Accordingly, on to submit their respective observations, which were filed on
October 5, 1971, the Court issued, in L-33964, L-33965, L- November 3, 1971, and complemented by some
33973 and L-33982, a resolution stating in part that — documents attached to the records on November 6, 1971,
and a summary, submitted on November 15, 1971, of the
aforesaid classified information.
In the meantime, cases Nos. L-34265 (Oreta) and L-34339
(Olivar) had been filed and the parties therein were heard
in oral argument on November 4, and 16, 1971,
respectively.
On November 15, 1971, the Solicitor General filed
manifestations — motions stating that on November 13,
1971, the following petitioners were:
(a) released from custody:
(1) Teodosio Lansang -- G.R. No. L-33964
(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) Antolin Oreta, Jr. -- " " L-34264.
(b) charged, together with other persons named in the
criminal complaint filed therefor, with a violation of Republic
Act No. 1700 (Anti-Subversion Act), in the City Fiscal's
Office of Quezon City:
(1) Angelo de los Reyes -- G.R. No. L-
22982 *
(2) Teresito Sison -- " " L-33982 *
(c) accused, together with many others named in the
criminal complaint filed therefor, of a violation of section 4
of Republic Act No. 1700 (Anti-Subversion Act), in the Court
of First Instance of Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-
33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No.
889, as amended, and praying that the petitions in G.R.
Nos. L-33964, L-33965, L-33982, L-34004, L-34013 and L-
34039 be dismissed, without prejudice to the resolution of
the remaining cases. Copy of the criminal complaint filed,
as above stated, with the Court of First Instance of Rizal
and docketed therein as Criminal Case No. Q-1623 of said
court — which was appended to said manifestations-
motions of the respondent as Annex 2 thereof — shows that
Gary Olivar, the petitioner in L-34339, is one of the
defendants in said case.
Required to comment on said manifestations-motions,
Luzvimindo David, petitioner in L-33973, in his comment
dated November 23, 1971, urged the Court to rule on the
merits of the petitions in all of these cases, particularly on
the constitutionality of Presidential Proclamation No. 889,
as amended, upon the ground that he is still detained and
that the main issue is one of public interest involving as it
does the civil liberties of the people. Angelo de los Reyes,
one of the petitioners in L-33964, L-33965 and L-33973,
Nemesio E. Prudente and Gerardo Tomas, for whose
respective benefit the petitions in L-33982 and L-34004
have been filed, maintained that the issue in these cases is
not moot, not even for the detainees who have been
released, for, as long as the privilege of the writ remains
suspended, they are in danger of being arrested and
detained again without just cause or valid reason. In his
reply, dated and filed on November 29, 1971, the Solicitor
General insisted that the release of the above-named
petitioners rendered their respective petitions moot and
academic.
I
Petitioners herein, except Antolin Oreta, Jr. in L-34265,
question the formal validity of the proclamation suspending
the privilege of the writ of habeas corpus. In this connection,
it should be noted that, as originally formulated,
Proclamation No. 889 was contested upon the ground that
it did not comply with the pertinent constitutional provisions,
namely, paragraph (14) of section 1, Article III of our
Constitution, reading:
The privilege of the writ of habeas
corpus shall not be suspended except in
cases of invasion, insurrection, or
rebellion, when the public safety requires it,
in any way of which events the same may
be suspended wherever during such
period the necessity for such suspension
shall exist.
and paragraph (2), section 10, Article VII of the same
instrument, which provides that:
The President shall be commander-in-chief
of all armed forces of the Philippines, and
whenever it becomes necessary, he may
call out such armed forces to prevent or
suppress lawless violence, invasion,
insurrection, or rebellion. In case of
invasion, insurrection, or rebellion, or
imminent danger thereof when the public
safety requires it, he may suspend the
privileges of the writ of habeas corpus, or
place the Philippines or any part thereof
under martial law.
Regardless of whether or not the President may suspend
the privilege of the writ of habeas corpus in case of
"imminent danger" of invasion, insurrection or rebellion —
which is one of the grounds stated in said paragraph (2),
section 10 of Art. VII of the Constitution, but not mentioned
in paragraph (14), section 1 of its Bill of Rights — petitioners
maintained that Proclamation No. 889 did not declare the
existence of actual "invasion insurrection or rebellion or
imminent danger thereof," and that, consequently, said
Proclamation was invalid. This contention was predicated
upon the fact that, although the first "whereas" in
Proclamation No. 889 stated that "lawless elements" had
"entered into a conspiracy and have in fact joined and
banded their forces together for the avowed purpose of
actually staging, undertaking and waging an armed
insurrection and rebellion," the actuality so alleged refers to
the existence, not of an uprising that constitutes the
essence of a rebellion or insurrection, but of
the conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same has been
rendered moot and academic by Proclamation No. 889-A,
issued nine (9) days after the promulgation of the original
proclamation, or on August 30, 1971. Indeed, said
Proclamation No. 889-A amended, inter alia, the first
"whereas" of the original proclamation by postulating the
said lawless elements "have entered into a conspiracy and
have in fact joined and banded their forces together for the
avowed purpose of staging, undertaking, waging and are
actually engaged in an armed insurrection and rebellion in
order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant
our existing political, social, economic and legal order with
an entirely new one ...." Moreover, the third "whereas" in the
original proclamation was, likewise, amended by alleging
therein that said lawless elements, "by their acts of rebellion
and insurrection," have created a state of lawlessness and
disorder affecting public safety and the security of the State.
In other words, apart from adverting to the existence of
actual conspiracy and of the intent to rise in arms to
overthrow the government, Proclamation No. 889-A asserts
that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their
purpose.
It may not be amiss to note, at this juncture, that the very
tenor of the original proclamation and particularly, the
circumstances under which it had been issued, clearly
suggest the intent to aver that there was and is, actually, a
state of rebellion in the Philippines, although the language
of said proclamation was hardly a felicitous one, it having in
effect, stressed the actuality of the intent to rise in arms,
rather than of the factual existence of the rebellion itself.
The pleadings, the oral arguments and the memoranda of
respondents herein have consistently and abundantly
emphasized — to justify the suspension of the privilege of
the writ of habeas corpus — the acts of violence and
subversion committed prior to August 21, 1971, by the
lawless elements above referred to, and the conditions
obtaining at the time of the issuance of the original
proclamation. In short, We hold that Proclamation No. 889-
A has superseded the original proclamation and that the
flaws attributed thereto are purely formal in nature.
II
Let us now consider the substantive validity of the
proclamation, as amended. Pursuant to the above-quoted
provisions of the Constitution, two (2) conditions must
concur for the valid exercise of the authority to suspend the
privilege to the writ, to wit: (a) there must be "invasion,
insurrection, or rebellion" or — pursuant to paragraph (2),
section 10 of Art. VII of the Constitution — "imminent danger
thereof," and (b) "public safety" must require the
suspension of the privilege. The Presidential Proclamation
under consideration declares that there has been and there
is actually a state of rebellion and
that4 "public safety requires that immediate and effective
action be taken in order to maintain peace and order,
secure the safety of the people and preserve the authority
of the State."
Are these findings conclusive upon the Court?
Respondents maintain that they are, upon the authority of
Barcelon v. Baker5 and Montenegro v. Castañeda.6 Upon
the other hand, petitioners press the negative view and urge
a reexamination of the position taken in said two (2) cases,
as well as a reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted
by two (2) factors, namely: (a) it relied heavily upon Martin
v. Mott7 involving the U.S. President's power to call out the
militia, which — he being the commander-in-chief of all the
armed forces — may be exercised to suppress or prevent
any lawless violence, even without invasion, insurrection or
rebellion, or imminent danger thereof, and is, accordingly,
much broader than his authority to suspend the privilege of
the writ of habeas corpus, jeopardizing as the latter does
individual liberty; and (b) the privilege had been suspended
by the American Governor-General, whose act, as
representative of the Sovereign, affecting the freedom of
its subjects, can hardly be equated with that of the
President of the Philippines dealing with the freedom of the
Filipino people, in whom sovereignty resides, and from
whom all government authority emanates. The pertinent
ruling in the Montenegro case was based mainly upon the
Barcelon case, and hence, cannot have more weight than
the same. Moreover, in the Barcelon case, the Court held
that it could go into the question: "Did the Governor-
General" — acting under the authority vested in him by the
Congress of the United States, to suspend the privilege of
the writ of habeas corpus under certain conditions — "act in
conformance with such authority?" In other words,
it did determine whether or not the Chief Executive had
acted in accordance with law. Similarly, in the Montenegro
case, the Court held that petitioner therein had "failed to
overcome the presumption of correctness which the
judiciary accords to acts of the Executive ...." In short, the
Court considered the question whether or not there really
was are rebellion, as stated in the proclamation therein
contested.
Incidentally, even the American jurisprudence is neither
explicit nor clear on the point under consideration. Although
some cases8 purport to deny the judicial power to "review"
the findings made in the proclamations assailed in said
cases, the tenor of the opinions therein given, considered
as a whole, strongly suggests the court's conviction that the
conditions essential for the validity of said proclamations or
orders were, in fact, present therein, just as the opposite
view taken in other cases9 had a backdrop permeated or
characterized by the belief that said conditions were absent.
Hence, the dictum of Chief Justice Taney to the effect that
"(e)very case must depend on its own
circumstances." 10 One of the important, if not dominant,
factors, in connection therewith, was intimated in Sterling v.
Constantin, 11 in which the Supreme Court of the United
States, speaking through Chief Justice Hughes, declared
that:
 .... When there is a substantial showing
that the exertion of state power has
overridden private rights secured by that
Constitution, the subject is necessarily one
for judicial inquiry in an appropriate
proceeding directed against the individuals
charged with the transgression. To such a
case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court
has all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a
majority of the Court" had "tentatively arrived at a
consensus that it may inquire in order to satisfy itself of the
existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A ... and
thus determine the constitutional sufficiency of such
bases in the light of the requirements of Article III, sec. 1,
par. 14, and Article VII, sec. 10, par 2, of the Philippine
Constitution...." Upon further deliberation, the members of
the Court are now unanimous in the conviction that it has
the authority to inquire into the existence of said factual
bases in order to determine the constitutional sufficiency
thereof.
Indeed, the grant of power to suspend the privilege is
neither absolute nor unqualified. The authority conferred by
the Constitution, both under the Bill of Rights and under the
Executive Department, is limited and conditional. The
precept in the Bill of Rights establishes a general rule, as
well as an exception thereto. What is more, it postulates the
former in the negative, evidently to stress its importance, by
providing that "(t)he privilege of the writ of habeas
corpus shall not be suspended ...." It is only by way
of exception that it permits the suspension of the privilege
"in cases of invasion, insurrection, or rebellion" — or, under
Art VII of the Constitution, "imminent danger thereof" —
"when the public safety requires it, in any of which events
the same may be suspended wherever during such period
the necessity for such suspension shall exist." 13 For from
being full and plenary, the authority to suspend the privilege
of the writ is thus circumscribed, confined and restricted, not
only by the prescribed setting or the conditions essential to
its existence, but, also, as regards the time when and the
place where it may be exercised. These factors and the
aforementioned setting or conditions mark, establish and
define the extent, the confines and the limits of said power,
beyond which it does not exist. And, like the limitations and
restrictions imposed by the Fundamental Law upon the
legislative department, adherence thereto and compliance
therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional
provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we
bear in mind that our political system is essentially
democratic and republican in character and that the
suspension of the privilege affects the most fundamental
element of that system, namely, individual freedom. Indeed,
such freedom includes and connotes, as well as demands,
the right of every single member of our citizenry to freely
discuss and dissent from, as well as criticize and denounce,
the views, the policies and the practices of the government
and the party in power that he deems unwise, improper or
inimical to the commonwealth, regardless of whether his
own opinion is objectively correct or not. The untrammelled
enjoyment and exercise of such right — which, under
certain conditions, may be a civic duty of the highest order
— is vital to the democratic system and essential to its
successful operation and wholesome growth and
development.
Manifestly, however, the liberty guaranteed and protected
by our Basic Law is one enjoyed and exercised, not in
derogation thereof, but consistently therewith, and, hence,
within the framework of the social order established by the
Constitution and the context of the Rule of Law.
Accordingly, when individual freedom is used to destroy that
social order, by means of force and violence, in defiance of
the Rule of Law — such as by rising publicly and taking
arms against the government to overthrow the same,
thereby committing the crime of rebellion — there emerges
a circumstance that may warrant a limited withdrawal of the
aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety
requires it. Although we must be forewarned against
mistaking mere dissent — no matter how emphatic or
intemperate it may be — for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate, much
less refuse — when the existence of such rebellion or
insurrection has been fairly established or cannot
reasonably be denied — to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land and
depriving him, to this extent, of such power, and, therefore,
without violating the Constitution and jeopardizing the very
Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the
privilege of the writ: (a) there must be "invasion, insurrection
or rebellion" or — pursuant to paragraph (2), section 10 of
Art. VII of the Constitution — "imminent danger thereof";
and (b) public safety must require the aforementioned
suspension. The President declared in Proclamation No.
889, as amended, that both conditions are present.
As regards the first condition, our jurisprudence 14 attests
abundantly to the Communist activities in the Philippines,
especially in Manila, from the late twenties to the early
thirties, then aimed principally at incitement to sedition or
rebellion, as the immediate objective. Upon the
establishment of the Commonwealth of the Philippines, the
movement seemed to have waned notably; but, the
outbreak of World War II in the Pacific and the miseries, the
devastation and havoc, and the proliferation of unlicensed
firearms concomitant with the military occupation of the
Philippines and its subsequent liberation, brought about, in
the late forties, a resurgence of the Communist threat, with
such vigor as to be able to organize and operate in Central
Luzon an army — called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya ng Bayan
(HMP) after liberation — which clashed several times with
the armed forces of the Republic. This prompted then
President Quirino to issue Proclamation No. 210, dated
October 22, 1950, suspending the privilege of the writ
of habeas corpus, the validity of which was upheld
in Montenegro v. Castañeda. 15 Days before the
promulgation of said Proclamation, or on October 18, 1950,
members of the Communist Politburo in the Philippines
were apprehended in Manila. Subsequently accused and
convicted of the crime of rebellion, they served their
respective sentences. 16
The fifties saw a comparative lull in Communist activities,
insofar as peace and order were concerned. Still, on June
20, 1957, Rep. Act No. 1700, otherwise known as the Anti-
Subversion Act, was approved, upon the ground — stated
in the very preamble of said statute — that.
... the Communist Party of the Philippines,
although purportedly a political party, is in
fact an organized conspiracy to overthrow
the Government of the Republic of the
Philippines, not only by force and violence
but also by deceit, subversion and other
illegal means, for the purpose of
establishing in the Philippines a totalitarian
regime subject to alien domination and
control;
... the continued existence and activities of
the Communist Party of the Philippines
constitutes a clear,
present and grave danger to the security of
the Philippines; 17 and
... in the face of the organized, systematic
and persistent subversion, national in
scope but international in direction, posed
by the Communist Party of the Philippines
and its activities, there is urgent need for
special legislation to cope with this
continuing menace to the freedom and
security of the country....
In the language of the Report on Central Luzon, submitted,
on September 4, 1971, by the Senate Ad Hoc Committee of
Seven — copy of which Report was filed in these cases by
the petitioners herein —
The years following 1963 saw the
successive emergence in the country of
several mass organizations, notably the
Lapiang Manggagawa (now the Socialist
Party of the Philippines) among the
workers; the Malayang Samahan ng mga
Magsasaka (MASAKA) among the
peasantry; the Kabataang Makabayan
(KM) among the youth/students; and the
Movement for the Advancement of
Nationalism (MAN) among the
intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence
and utilize these organizations in
promoting its radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had
been split into two (2) groups, one of which — composed
mainly of young radicals, constituting the Maoist faction —
reorganized the Communist Party of the Philippines early in
1969 and established a New People's Army. This faction
adheres to the Maoist concept of the "Protracted People's
War" or "War of National Liberation." Its "Programme for a
People's Democratic Revolution" states, inter alia:
The Communist Party of the Philippines is
determined to implement its general
programme for a people's democratic
revolution. All Filipino communists are
ready to sacrifice their lives for the worthy
cause of achieving the new type of
democracy, of building a new Philippines
that is genuinely and completely
independent, democratic, united, just and
prosperous ...
xxx xxx xxx
The central task of any revolutionary
movement is to seize political power. The
Communist Party of the Philippines
assumes this task at a time that both the
international and national situations are
favorable of asking the road of armed
revolution ... 19
In the year 1969, the NPA had — according to the records
of the Department of National Defense — conducted raids,
resorted to kidnappings and taken part in other violent
incidents numbering over 230, in which it inflicted 404
casualties, and, in turn, suffered 243 losses. In 1970, its
records of violent incidents was about the same, but the
NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all
Communists, whether they belong to the traditional group
or to the Maoist faction, believe that force and violence are
indispensable to the attainment of their main and ultimate
objective, and act in accordance with such belief, although
they may disagree on the means to be used at a given time
and in a particular place; and (b) there is a New People's
Army, other, of course, that the arm forces of the Republic
and antagonistic thereto. Such New People's Army is per
se proof of the existence of a rebellion, especially
considering that its establishment was announced
publicly by the reorganized CPP. Such announcement is in
the nature of a public challenge to the duly constituted
authorities and may be likened to a declaration of war,
sufficient to establish a war status or a condition of
belligerency, even before the actual commencement of
hostilities.
We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to
overthrow the government and have thus been and still are
engaged in rebellion against the Government of the
Philippines.
In fact, the thrust of petitioners' argument is that the New
People's Army proper is too small, compared with the size
of the armed forces of the Government, that the Communist
rebellion or insurrection cannot so endanger public safety
as to require the suspension of the privilege of the writ
of habeas corpus. This argument does not negate,
however, the existence of a rebellion, which, from the
constitutional and statutory viewpoint, need not be
widespread or attain the magnitude of a civil war. This is
apparent from the very provision of the Revised Penal Code
defining the crime of rebellion, 20 which may be limited in its
scope to "any part" of the Philippines, and, also, from
paragraph (14) of section 1, Article III of the Constitution,
authorizing the suspension of the privilege of the writ
"wherever" — in case of rebellion — "the necessity for such
suspension shall exist." In fact, the case of Barcelon v.
Baker referred to a proclamation suspending the privilege
in the provinces of Cavite and Batangas only. The case of
In re Boyle 21involved a valid proclamation suspending the
privilege in a smaller area — a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the
privilege — namely, that the suspension be required by
public safety. Before delving, however, into the factual
bases of the presidential findings thereon, let us consider
the precise nature of the Court's function in passing upon
the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the principle
of separation of powers underlying our system of
government, the Executive is supreme within his own
sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
In the exercise of such authority, the function of the Court is
merely to check — not to supplant 22 — the Executive, or to
ascertain merely whether he had gone beyond the
constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his act.
To be sure, the power of the Court to determine the validity
of the contested proclamation is far from being identical to,
or even comparable with, its power over ordinary civil or
criminal cases elevated thereto by ordinary appeal from
inferior courts, in which cases the appellate court has all of
the powers of the court of origin.
Under the principle of separation of powers and the system
of checks and balances, the judicial authority to review
decisions of administrative bodies or agencies is much
more limited, as regards findings of fact made in said
decisions. Under the English law, the reviewing court
determines only whether there is some evidentiary
basis for the contested administrative findings; no
quantitative examination of the supporting evidence is
undertaken. The administrative findings can be interfered
with only if there is no evidence whatsoever in support
thereof, and said finding is, accordingly, arbitrary,
capricious and obviously unauthorized. This view has been
adopted by some American courts. It has, likewise, been
adhered to in a number of Philippine cases. Other cases,
in bothjurisdictions, have applied the "substantial evidence"
rule, which has been construed to mean "more than a mere
scintilla" or "relevant evidence as a reasonable mind might
accept as adequate to support a conclusion," 23 even if
other minds equally reasonable might conceivably opine
otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of
quasi-judicial functions calling for or entailing the reception
of evidence. It does not and cannot be applied, in its
aforesaid form, in testing the validity of an act of Congress
or of the Executive, such as the suspension of the privilege
of the writ of habeas corpus, for, as a general rule, neither
body takes evidence — in the sense in which the term is
used in judicial proceedings — before enacting a legislation
or suspending the writ. Referring to the test of the validity of
a statute, the Supreme Court of the United States, speaking
through Mr. Justice Roberts, expressed, in the leading case
of Nebbia v. New York, 24 the view that:
... If the laws passed are seen to have
a reasonable relation to a proper
legislative purpose, and are neither
arbitrary nor discriminatory, the
requirements of due process are satisfied,
and judicial determination to that effect
renders a court functus officio ... With the
wisdom of the policy adopted, with the
adequacy or practically of the law enacted
to forward it, the courts are
both incompetent and unauthorized to
deal ...
Relying upon this view, it is urged by the Solicitor General
—
... that judicial inquiry into the basis of the
questioned proclamation can go no
further than to satisfy the Court not that the
President's decision is correct and that
public safety was endanger by the rebellion
and justified the suspension of the writ, but
that in suspending the writ, the President
did not act arbitrarily.
No cogent reason has been submitted to warrant the
rejection of such test. Indeed, the co-equality of coordinate
branches of the Government, under our constitutional
system, seems to demand that the test of the validity of acts
of Congress and of those of the Executive be, mutatis
mutandis, fundamentally the same. Hence, counsel for
petitioner Rogelio Arienda admits that the proper standard
is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of
the writ of habeas corpus decreed in Proclamation No. 889,
as amended? Petitioners submit a negative answer upon
the ground: (a) that there is no rebellion; (b) that, prior to
and at the time of the suspension of the privilege, the
Government was functioning normally, as were the courts;
(c) that no untoward incident, confirmatory of an alleged
July-August Plan, has actually taken place after August 21,
1971; (d) that the President's alleged apprehension,
because of said plan, is non-existent and unjustified; and
(e) that the Communist forces in the Philippines are too
small and weak to jeopardize public safety to such extent
as to require the suspension of the privilege of the writ
of habeas corpus.
As above indicated, however, the existence of a rebellion is
obvious, so much so that counsel for several petitioners
herein have admitted it.
With respect to the normal operation of government,
including courts, prior to and at the time of the suspension
of the privilege, suffice it to say that, if the conditions were
such that courts of justice no longer functioned, a
suspension of the privilege would have been unnecessary,
there being no courts to issue the writ of habeas corpus.
Indeed, petitioners' reference to the normal operation of
courts as a factor indicative of the illegality of the contested
act of the Executive stems, perhaps, from the fact that this
circumstance was adverted to in some American cases to
justify the invalidation therein decreed of said act of the
Executive. Said cases involved, however, the conviction
by military courts of members of the civilian population
charged with common crimes. It was manifestly, illegal for
military courts to assume jurisdiction over civilians so
charged, when civil courts were functioning normally.
Then, too, the alleged absence of any untoward incident
after August 21, 1971, does not necessarily bear out
petitioners' view. What is more, it may have been due
precisely to the suspension of the privilege. To be sure, one
of its logical effects is to compel those connected with the
insurrection or rebellion to go into hiding. In fact, most of
them could not be located by the authorities, after August
21, 1971.
The alleged July-August Plan to terrorize Manila is branded
as incredible, upon the theory that, according to Professor
Egbal Ahman of Cornell University, "guerrilla use of terror
... is sociological and psychologically selective," and that
the indiscriminate resort to terrorism is bound to
boomerang, for it tends to alienate the people's symphaty
and to deprive the dissidents of much needed mass
support. The fact, however, is that the violence used is
some demonstrations held in Manila in 1970 and 1971
tended to terrorize the bulk of its inhabitants. It would have
been highly imprudent, therefore, for the Executive to
discard the possibility of a resort to terrorism, on a much
bigger scale, under the July-August Plan.
We will now address our attention to petitioners' theory to
the effect that the New People's Army of the Communist
Party of the Philippines is too small to pose a danger to
public safety of such magnitude as to require the
suspension of the privilege of the writ of habeas corpus.
The flaw in petitioners' stand becomes apparent when we
consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New
People's Army, and that the latter is the only threat — and
a minor one — to our security. Such assumption is
manifestly erroneous.
The records before Us show that, on or before August 21,
1971, the Executive had information and reports —
subsequently confirmed, in many respects, by the
abovementioned Report of the Senate Ad-Hoc Committee
of Seven 25 — to the effect that the Communist Party of the
Philippines does not merely adhere to Lenin's idea of a swift
armed uprising; that it has, also, adopted Ho Chi Minh's
terrorist tactics and resorted to the assassination of
uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3
chiefs of police; that there were fourteen (14) meaningful
bombing incidents in the Greater Manila Area in 1970; that
the Constitutional Convention Hall was bombed on June 12,
1971; that, soon after the Plaza Miranda incident, the
NAWASA main pipe, at the Quezon City-San Juan
boundary, was bombed; that this was followed closely by
the bombing of the Manila City Hall, the COMELEC
building, the Congress Building and the MERALCO
substation at Cubao, Quezon City; and that the respective
residences of Senator Jose J. Roy and Congressman
Eduardo Cojuangco were, likewise, bombed, as were the
MERALCO main office premises, along Ortigas Avenue,
and the Doctor's Pharmaceuticals, Inc. Building, in
Caloocan City.
Petitioners, similarly, fail to take into account that — as per
said information and reports — the reorganized Communist
Party of the Philippines has, moreover, adopted Mao's
concept of protracted people's war, aimed at the
paralyzation of the will to resist of the government, of the
political, economic and intellectual leadership, and of the
people themselves; that conformably to such concept, the
Party has placed special emphasis upon a most extensive
and intensive program of subversion by the establishment
of front organizations in urban centers, the organization of
armed city partisans and the infiltration in student groups,
labor unions, and farmer and professional groups; that the
CPP has managed to infiltrate or establish and control nine
(9) major labor organizations; that it has exploited the youth
movement and succeeded in making Communist fronts of
eleven (11) major student or youth organizations; that there
are, accordingly, about thirty (30) mass organizations
actively advancing the CPP interests, among which are the
Malayang Samahan ng Magsasaka (MASAKA), the
Kabataang Makabayan (KM), the Movement for the
Advancement of Nationalism (MAN), the Samahang
Demokratiko ng Kabataan (SDK), the Samahang Molave
(SM) and the Malayang Pagkakaisa ng Kabataang
Pilipino(MPKP); that, as of August, 1971, the KM had two
hundred forty-five (245) operational chapters throughout
the Philippines, of which seventy-three (73) were in the
Greater Manila Area, sixty (60) in Northern Luzon, forty-nine
(49) in Central Luzon, forty-two (42) in the Visayas and
twenty-one (21) in Mindanao and Sulu; that in 1970, the
Party had recorded two hundred fifty-eight (258) major
demonstrations, of which about thirty-three (33) ended in
violence, resulting in fifteen (15) killed and over five hundred
(500) injured; that most of these actions were organized,
coordinated or led by the aforementioned front
organizations; that the violent demonstrations were
generally instigated by a small, but well-trained group of
armed agitators; that the number of demonstrations
heretofore staged in 1971 has already exceeded those of
1970; and that twenty-four (24) of these demonstrations
were violent, and resulted in the death of fifteen (15)
persons and the injury of many more.
Subsequent events — as reported — have also proven that
petitioners' counsel have underestimated the threat to
public safety posed by the New People's Army. Indeed, it
appears that, since August 21, 1971, it had in Northern
Luzon six (6) encounters and staged one (1) raid, in
consequence of which seven (7) soldiers lost their lives and
two (2)others were wounded, whereas the insurgents
suffered five (5) casualties; that on August 26, 1971, a well-
armed group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command port of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and
wounding one (1) soldier; that the NPA had in Central Luzon
a total of four (4) encounters, with two (2) killed and three
(3) wounded on the side of the Government, one (1) BSDU
killed and three (3) NPA casualties; that in an encounter at
Botolan, Zambales, one (1) KM-SDK leader, an unidentified
dissident, and Commander Panchito, leader of the dissident
group were killed; that on August 26, 1971, there was an
encounter in the barrio of San Pedro. Iriga City, Camarines
Sur, between the PC and the NPA, in which a PC and two
(2) KM members were killed; that the current disturbances
in Cotabato and the Lanao provinces have been rendered
more complex by the involvement of the CPP/NPA, for, in
mid-1971, a KM group, headed by Jovencio Esparagoza,
contacted the Higa-onan tribes, in their settlement in
Magsaysay, Misamis Oriental, and offered them books,
pamphlets and brochures of Mao Tse Tung, as well as
conducted teach-ins in the reservation; that Esparagoza an
operation of the PC in said reservation; and that there are
now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its
front organizations are, according to intelligence findings,
definitely capable of preparing powerful explosives out of
locally available materials; that the bomb used in the
Constitutional Convention Hall was a "clay-more" mine, a
powerful explosive device used by the U.S. Army, believed
to have been one of many pilfered from the Subic Naval
Base a few days before; that the President had received
intelligence information to the effect that there was a July-
August Plan involving a wave of assassinations,
kidnappings, terrorism and mass destruction of property
and that an extraordinary occurence would signal the
beginning of said event; that the rather serious condition of
peace and order in Mindanao, particularly in Cotabato and
Lanao, demanded the presence therein of forces sufficient
to cope with the situation; that a sizeable part of our armed
forces discharge other functions; and that the expansion of
the CPP activities from Central Luzon to other parts of the
country, particularly Manila and its suburbs, the Cagayan
Valley, Ifugao, Zambales, Laguna, Quezon and Bicol
Region, required that the rest of our armed forces be spread
thin over a wide area.
Considering that the President was in possession of the
above data — except those related to events that happened
after August 21, 1971 — when the Plaza Miranda bombing
took place, the Court is not prepared to hold that the
Executive had acted arbitrarily or gravely abused his
discretion when he then concluded that public safety and
national security required the suspension of the privilege of
the writ, particularly if the NPA were to strike simultaneously
with violent demonstrations staged by the two hundred
forty-five (245) KM chapters, all over the Philippines, with
the assistance and cooperation of the dozens of CPP front
organizations, and the bombing or water mains and
conduits, as well as electric power plants and installations
— a possibility which, no matter how remote, he was bound
to forestall, and a danger he was under obligation to
anticipate and arrest.
He had consulted his advisers and sought their views. He
had reason to feel that the situation was critical — as,
indeed, it was — and demanded immediate action. This he
took believing in good faith that public safety required it.
And, in the light of the circumstances adverted to above, he
had substantial grounds to entertain such belief.
Petitioners insist that, nevertheless, the President had no
authority to suspend the privilege in the entire Philippines,
even if he may have been justified in doing so in some
provinces or cities thereof. At the time of the issuance of
Proclamation No. 889, he could not be reasonably certain,
however, about the placed to be excluded from the
operation of the proclamation. He needed some time to find
out how it worked, and as he did so, he caused the
suspension to be gradually lifted, first, on September 18,
1971, in twenty-seven (27) provinces, three (3) sub-
provinces and twenty six (26) cities; then, on September 25,
1971, in order fourteen (14) provinces and thirteen (13)
cities; and, still later, on October 4, 1971, in seven (7)
additional provinces and four (4) cities, or a total of forty-
eight (48) provinces, three (3) sub-provinces and forth-three
(43) cities, within a period of forty-five (45) days from August
21, 1971.
Neither should We overlook the significance of another fact.
The President could have declared a general suspension of
the privilege. Instead, Proclamation No. 889 limited the
suspension to persons detained "for crimes of insurrection
or rebellion, and all other crimes and offenses committed by
them in furtherance or on the occasion thereof, or incident
thereto, or in connection therewith." Even this was further
limited by Proclamation No. 889-A, which withdrew from the
coverage of the suspension persons detained for other
crimes and offenses committed "on the occasion" of the
insurrection or rebellion, or "incident thereto, in or
connection therewith." In fact, the petitioners in L-33964, L-
33982 and L-34004 concede that the President had acted
in good faith.
In case of invasion, insurrection or rebellion or imminent
danger thereof, the President has, under the Constitution,
three (3) courses of action open to him, namely: (a) to call
out the armed forces; (b) to suspend the privilege of the writ
of habeas corpus; and (c) to place the Philippines or any
part thereof under martial law. He had, already, called out
the armed forces, which measure, however, proved
inadequate to attain the desired result. Of the two (2)other
alternatives, the suspension of the privilege is the least
harsh.
In view of the foregoing, it does not appear that the
President has acted arbitrary in issuing Proclamation No.
889, as amended, nor that the same is unconstitutional.
III
The next question for determination is whether petitioners
herein are covered by said Proclamation, as amended. In
other words, do petitioners herein belong to the class of
persons as to whom privilege of the writ of habeas
corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the
petitioners in L-33964, Gerardo Tomas, petitioner in L-
34004, and Reynaldo Rimando, petitioner in L-34013, were,
on November 13, 1971, released "permanently" —
meaning, perhaps, without any intention to prosecute them
— upon the ground that, although there was reasonable
ground to believe that they had committed an offense
related to subversion, the evidence against them is
insufficient to warrant their prosecution; that Teodosio
Lansang, one of the petitioners in L-33964, Rogelio
Arienda, petitioner in L-33965, Nemesio Prudente,
petitioner in L-33982, Filomeno de Castro and Barcelisa C.
de Castro, for whose benefit the petition in L-34039 was
filed, and Antolin Oreta, Jr., petitioner in L-34265, were, on
said date, "temporarily released"; that Rodolfo del Rosario,
one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965
and L-33973, as well as Luzvimindo David, petitioner in L-
33973, and Gary Olivar, petitioner in L-34339, are still under
detention and, hence, deprived of their liberty, they —
together with over forty (40) other persons, who are at large
— having been accused, in the Court of First Instance of
Rizal, of a violation of section 4 of Republic Act No. 1700
(Anti-Subversion Act); and that Angelo delos Reyes and
Teresito Sison, intervenors in said L-33964, L-33965 and
L-33973, are, likewise, still detained and have been
charged — together with over fifteen (15) other persons,
who are, also, at large — with another violation of said Act,
in a criminal complaint filed with the City Fiscal's Office of
Quezon City.
With respect to Vicente Ilao and Juan Carandang —
petitioners in L-33965 — who were released as early as
August 31, 1971, as well as to petitioners Nemesio
Prudente, Teodosio Lansang, Rogelio Arienda, Antolin
Oreta, Jr., Filomeno de Castro, Barcelisa C. de Castro,
Reynaldo Rimando, Gerardo Tomas and Bayani Alcala,
who were released on November 13, 1971, and are no
longer deprived of their liberty, their respective petitions
have, thereby, become moot and academic, as far as their
prayer for release is concerned, and should, accordingly, be
dismissed, despite the opposition thereto of counsel for
Nemesio Prudente and Gerardo Tomas who maintain that,
as long as the privilege of the writ remains suspended,
these petitioners might be arrested and detained again,
without just cause, and that, accordingly, the issue raised in
their respective petitions is not moot. In any event, the
common constitutional and legal issues raised in these
cases have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of
the petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito
Sison, intervenors in L-33964, L-33965 and L-33973,
Luzvimindo David, petitioner in L-33973, and Gary Olivar,
petitioner in L-34339, who are still detained? The
suspension of the privilege of the writ was decreed by
Proclamation No. 889, as amended, for persons detained
"for the crimes of insurrection or rebellion and other overt
acts committed by them in furtherance thereof."
The records shows that petitioners Luzvimindo David,
Rodolfo del Rosario, Victor Felipe, Angelo de los Reyes,
Teresito Sison and Gary Olivar are accused in Criminal
Case No. Q-1623 of the Court of First Instance of Rizal with
a violation of the Anti-Subversion Act and that the similar
charge against petitioners Angelo de los Reyes and
Teresito Sison in a criminal complaint, originally filed with
the City Fiscal of Quezon City, has, also, been filed with
said court. Do the offenses so charged constitute one of the
crimes or overt acts mentioned in Proclamation No. 889, as
amended?
In the complaint in said Criminal Case No. 1623, it is
alleged:
That in or about the year 1968 and for sometime prior
thereto and thereafter up to and including August 21, 1971,
in the city of Quezon, Philippines, and elsewhere in the
Philippines, within the jurisdiction of this Honorable Court,
the above-named accused knowingly, wilfully and by overt
acts became officers and/or ranking leaders of the
Communist Party of the Philippines, a subversive
association as defined by Republic Act No. 1700, which
is an organized conspiracy to overthrow the government of
the Republic of the Philippines by force, violence, deceit,
subversion and other illegal means, for the purpose of
establishing in the Philippines a communist totalitarian
regime subject to alien domination and control;
That all the above-named accused, as such officers and/or
ranking leaders of the Communist Party of the Philippines
conspiring, confederating and mutual helping one another,
did then and there knowingly, wilfully, and feloniously
and by overt acts committed subversive acts all intended to
overthrow the government of the Republic of the
Philippines, as follows:
1. By rising publicly and taking arms against the
forces of the government, engaging in war against the
forces of the government, destroying property or
committing serious violence, exacting contributions or
diverting public lands or property from the law purposes for
which they have been appropriated;
2. By engaging by subversion thru expansion and
requirement activities not only of the Communist Party of
the Philippines but also of the united front organizations of
the Communist Party of the Philippines as the Kabataang
Makabayan (KM), Movement for the Democratic Philippines
(MDP), Samahang Demokratikong Kabataan (SDK),
Students' Alliance for National Democracy (STAND),
MASAKA Olalia-faction, Student Cultural Association of the
University of the Philippines (SCAUP), KASAMA,
Pagkakaisa ng Magbubukid ng Pilipinas (PMP) and many
others; thru agitation promoted by rallies, demonstration
and strikes some of them violent in nature, intended to
create social discontent, discredit those in power and
weaken the people's confidence in the government; thru
consistent propaganda by publications, writing, posters,
leaflets of similar means; speeches, teach-ins, messages,
lectures or other similar means; or thru the media as the TV,
radio or newspapers, all intended to promote the
Communist pattern of subversion;
3. Thru urban guerilla warfare characterized by
assassinations, bombings, sabotage, kidnapping and
arson, intended to advertise the movement, build up its
morale and prestige, discredit and demoralize the
authorities to use harsh and repressive measures,
demoralize the people and weaken their confidence in the
government and to weaken the will of the government to
resist.
That the following aggravating circumstances attended the
commission of the offense:
a. That the offense was committed in contempt of
and with insult to the public authorities;
b. That some of the overt acts were committed in
the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of
armed men;
e. That the offense was committed with the aid of
persons under fifteen(15) years old.
Identical allegations are made in the complaint filed with the
City Fiscal of Quezon City, except that the second
paragraph thereof is slightly more elaborate than that of the
complaint filed with the CFI, although substantially the
same. 26
In both complaints, the acts imputed to the defendants
herein constitute rebellion and subversion, of — in the
language of the proclamation — "other overt acts
committed ... in furtherance" of said rebellion, both of which
are covered by the proclamation suspending the privilege
of the writ. It is clear, therefore, that the crime for which the
detained petitioners are held and deprived of their liberty
are among those for which the privilege of the writ
of habeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous
on the legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not
invalid and that petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison are detained for and actually accused of an
offense for which the privilege of the writ has been
suspended by said proclamation, our next step would have
been the following: The Court, or a commissioner
designated by it, would have received evidence on whether
— as stated in respondents' "Answer and Return" — said
petitioners had been apprehended and detained "on
reasonable belief" that they had "participated in the crime of
insurrection or rebellion."
It is so happened, however, that on November 13, 1971 —
or two (2) days before the proceedings relative to the
briefing held on October 28 and 29, 1971, had been
completed by the filing 27 of the summary of the matters
then taken up — the aforementioned criminal complaints
were filed against said petitioners. What is more, the
preliminary examination and/or investigation of the charges
contained in said complaints has already begun. The next
question, therefore, is: Shall We now order, in the cases at
hand, the release of said petitioners herein, despite the
formal and substantial validity of the proclamation
suspending the privilege, despite the fact that they are
actually charged with offenses covered by said
proclamation and despite the aforementioned criminal
complaints against them and the preliminary examination
and/or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion, and, so hold, that, instead of
this Court or its Commissioner taking the evidence adverted
to above, it is best to let said preliminary examination and/or
investigation to be completed, so that petitioners' released
could be ordered by the court of first instance, should it find
that there is no probable cause against them, or a warrant
for their arrest could be issued, should a probable cause be
established against them. Such course of action is more
favorable to the petitioners, inasmuch as the preliminary
examination or investigation requires a greater quantum of
proof than that needed to establish that the Executive had
not acted arbitrary in causing the petitioners to be
apprehended and detained upon the ground that they had
participated in the commission of the crime of insurrection
or rebellion. And, it is mainly for the reason that the Court
has opted to allow the Court of First Instance of Rizal to
proceed with the determination of the existence of probable
cause, although ordinarily the Court would have merely
determined the existence of the substantial evidence of
petitioners' connection with the crime of rebellion. Besides,
the latter alternative would require the reception of evidence
by this Court and thus duplicate the proceedings now taking
place in the court of first instance. What is more, since the
evidence involved in the same proceedings would be
substantially the same and the presentation of such
evidence cannot be made simultaneously, each proceeding
would tend to delay the other.
Mr. Justice Fernando is of the opinion — in line with the
view of Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the
effect that "... if and when formal complaint is presented, the
court steps in and the executive steps out. The detention
ceases to be an executive and becomes a judicial concern
..." — that the filing of the above-mentioned complaint
against the six (6) detained petitioners herein, has the effect
of the Executive giving up his authority to continue holding
them pursuant to Proclamation No. 889, as amended, even
if he did not so intend, and to place them fully under the
authority of courts of justice, just like any other person, who,
as such, cannot be deprived of his liberty without lawful
warrant, which has not, as yet, been issued against anyone
of them, and that, accordingly, We should order their
immediate release. Despite the humanitarian and
libertarian spirit with which this view had been espoused,
the other Members of the Court are unable to accept it
because:
(a) If the proclamation suspending the privilege of the writ
of habeas corpus is valid — and We so hold it to be — and
the detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the
suspension of said privilege, and, consequently, his release
may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or
information does not detract from the validity and efficacy of
the suspension of the privilege, it would be more reasonable
to construe the filing of said formal charges with the court of
first instance as an expression of the President's belief that
there are sufficient evidence to convict the petitioners so
charged and that hey should not be released,
therefore, unless and until said court — after conducting the
corresponding preliminary examination and/or investigation
— shall find that the prosecution has not established the
existence of a probable cause. Otherwise, the Executive
would have released said accused, as were the other
petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the
act of the President in having said formal charges filed —
is, We believe, more beneficial to the detainees than that
favored by Mr. Justice Fernando. His view — particularly
the theory that the detainees should be released
immediately, without bail, even before the completion of
said preliminary examination and/or investigation — would
tend to induce the Executive to refrain from filing formal
charges as long as it may be possible. Manifestly, We
should encourage the early filing of said charges, so that
courts of justice could assume jurisdiction over the
detainees and extend to them effective protection.
Although some of the petitioners in these cases pray that
the Court decide whether the constitutional right to bail is
affected by the suspension of the privilege of the writ
of habeas corpus, We do not deem it proper to pass upon
such question, the same not having been sufficiently
discussed by the parties herein. Besides, there is no point
in settling said question with respect to petitioners herein
who have been released. Neither is necessary to express
our view thereon, as regards those still detained, inasmuch
as their release without bail might still be decreed by the
court of first instance, should it hold that there is no probable
cause against them. At any rate, should an actual issue on
the right to bail arise later, the same may be brought up in
appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in
issuing Proclamation No. 889, as amended, and that,
accordingly, the same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982,
L-34004, L-34013, L-34039 and L-34265, insofar as
petitioners Teodosio Lansang, Bayani Alcala, Rogelio
Arienda, Vicentellao, Juan Carandang, Nemesio E.
Prudente, Gerardo Tomas, Reynaldo Rimando, Filomeno
M. de Castro, Barcelisa C. de Castro and Antolin Oreta, Jr.
are concerned;
3. The Court of First Instance of Rizal is hereby directed to
act with utmost dispatch in conducting the preliminary
examination and/or investigation of the charges for violation
of the Anti-Subversion Act filed against herein petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison, and to
issue the corresponding warrants of arrest, if probable
cause is found to exist against them, or, otherwise, to order
their release; and
4. Should there be undue delay, for any reason whatsoever,
either in the completion of the aforementioned preliminary
examination and/or investigation, or in the issuance of the
proper orders or resolution in connection therewith, the
parties may by motion seek in these proceedings the proper
relief.
5. Without special pronouncement as to costs. It is so
ordered.
Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo,
Villamor and Makasiar, JJ., concur.
Separate Opinions
CASTRO and BARREDO, JJ., concurring:
While concurring fully in the opinion of the Court, we
nevertheless write separately to answer, from our own
perspective, a point which Mr. Justice Fernando makes in
his dissent. His view, as we understand it, is that while an
individual may be detained beyond the maximum detention
period fixed by law when the privilege of the writ of habeas
corpus is suspended, such individual is nevertheless
entitled to be released from the very moment a formal
complaint is filed in court against him. The theory seems to
be that from the time the charge is filed, the court acquires,
because the executive officials abdicate, jurisdiction.
This view is based on the separate opinion of Mr. Justice
Pedro Tuason in Nava vs. Gatmaitan.1 Justice Tuason, in
part, said:
All persons detained for investigation by
the executive department are under
executive control. It is here where the
Constitution tells the court to keep their
hands off — unless the cause of the
detention be for an offense other than
rebellion or insurrection, which is another
matter.
By the same token, if and when a formal
complaint is presented, the court steps in
and the executive steps out. The detention
ceases to be an executive and becomes a
judicial concern...
But the issue to which the Supreme Court Justices
in Nava individually addressed themselves is radically
disparate from that raised in these cases. There the
question was whether after the detainees had been formally
charged in court and an order for their arrest had been
issued, they were entitled to bail. It was on that question
that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had
been accused in court, the question of release on bail was
a matter that the court should decide.
Upon the other hand, the question here presented is
whether the detainees should be released forthwith upon
the filing of charges against them in court and cannot
thereafter be re-arrested except only by court order. This is
a totally different question. It is our submission that they are
not entitled to be released. The dissent is, we believe,
based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and
the arresting officer is thereby divested of custody over him.
Except in a metaphorical sense, the detainee is not
delivered or surrendered at all to the judicial authorities.
What the phrase "delivered to the court" simply means is
that from the time a person is indicted in court, the latter
acquires jurisdiction over the subject-matter. 2 The detainee
remains in the custody of the detaining officer, under the
same authority invoked for the detention, until the court
decides whether there is probable cause to order his arrest.
Under ordinary circumstances, when a person is arrested
without a warrant and is charged in court, he is not released.
He is held until the judicial authority orders either his release
or his confinement. It is no argument to say that under
Article III, section 1 (3) of the Constitution only a court can
order the arrest of an individual. Arrests without warrant are
familiar occurrences, and they have been upheld as
constitutional.3
What is more, the privilege of the writ was suspended
precisely to authorize the detention of persons believed to
be plotting against the security of the State until the courts
can act on their respective cases. To require their
peremptory release upon the mere filing of charges against
them, without giving the proper court opportunity and time
to decide the question of probable cause, would obviously
be to defeat the very basic purpose of the suspension. We
think our role as judges in the cases at bar is clear. After
finding that the Presidential decree was validly issued, we
should give it effect. To uphold its validity and then try to
dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise
of the Presidential prerogative.
Not only that. If the rule were that the detainees must be
released upon the mere filing of charges against them in
court, it is unlikely that the executive officials would have
filed the charges because of their awareness of the
continuing danger which in the first place impelled the arrest
of the detainees, and the end result would be to inflict on
the latter a much longer period of deprivation of personal
liberty than is warranted.
Whatever our personal views may be of the power to
suspend, the fact remains that the power is there, writ large
and indubitable in the Constitution. It is far too easy to write
anthologies on the side of civil liberties or on the side of
governmental order, depending on one's inclination or
commitment. But that is not our function. Constitutional
issues, it has been said, do not take the form of right versus
wrong, but of right versus right. And the Court's function, as
we see it, is, fundamentally to moderate the clash of values,
and not to inflate them into constitutional dimensions.
Where it is possible, we should avoid passing on a
constitutional question. But where there is no escape from
the duty of abstention, our further duty is to decide the
question of constitutional validity on a less heroic plane.
And that is what we have tried to do in pointing out that the
ordinary rules of criminal procedure provide an adequate
answer to Mr. Justice Fernando's problem. That solution is
for the arresting officer to hold the person detained until the
court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the
arresting officer must release the detainee upon the
expiration of the maximum detention time allowed by law, if
he has not delivered the detainee to the court within that
period.
To insist on the procedural aspect of a constitutional
problem as a manner of solving it is, after all, no less to be
libertarian. Insistence on it is, to us, and in point of fact, one
of the cornerstone of liberalism.
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice easily
ranks with his many landmark opinions in Constitutional
Law and is in the tradition of the great judicial
pronouncements from this Tribunal. Skillful in its analysis,
impressive as to its learning, comprehensive in its scope,
and compelling in its logic, it exerts considerable persuasive
force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the
conclusion that the six petitioners still under detention
should not be set free. It is for me a source of deep regret
that having gone quite far in manifesting the utmost
sympathy for and conformity with the claims of civil liberties,
it did not go farther. Candor induces the admission though
that the situation realistically viewed may not justify going
all the way. Nonetheless the deeply-rooted conviction as to
the undoubted primacy of constitutional rights, even under
circumstances the least propitious, precludes me from
joining my brethren in that portion of the decision reached.
Nor should I let this opportunity pass without acknowledging
the fairness, even the generosity, in the appraisal of my
position in the position of the Chief Justice.
1. The function of judicial review fitly characterized as both
delicate and awesome is never more so than when the
judiciary is called upon to pass on the validity of an act of
the President arising from the exercise of a power granted
admittedly to cope with an emergency or crisis situation.
More specifically, with reference to the petitions before us,
the question that calls for prior consideration is whether the
suspension of the privilege of the writ of habeas corpusis
tainted by constitutional infirmity. What the President did
attested to an executive determination of the existence of
the conditions that warranted such a move. For one of the
mandatory provisions of the Bill of Rights1 is that no such
suspension is allowable, except in cases of invasion,
insurrection or rebellion, when the public safety requires,
and, even, then, only in such places and for such period of
time as may be necessary.2 There is the further provision
that the constitutional official so empowered to take such a
step is the President.3 The exceptional character of the
situation is thus underscored. The presumption would seem
to be that if such a step were taken, there must have been
a conviction on the part of the Executive that he could not,
in the fulfillment of the responsibility entrusted to him, avoid
doing so. That decision is his to make; it is not for the
judiciary. It is therefore encased in the armor of what must
have been a careful study on his part, in the light of relevant
information which as Commander-in-Chief he is furnished,
ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the
sphere of individual freedom contracts and the scope of
governmental authority expands during times of
emergency, it becomes manifest why an even greater
degree of caution and circumspection must be exercised by
the judiciary when, on this matter, it is called upon to
discharge the function of judicial review.
2. Not that the judiciary has any choice on the matter. That
view would indict itself for unorthodoxy if it maintains that
the existence of rebellion suffices to call for the disregard of
the applicable constitutional guarantees. Its implication
would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the
American Supreme Court in the leading case of Ex-
parte Milligan4 stated: "The Constitution is a law for rulers
and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and
under all circumstances." This ringing affirmation should at
the very least give pause to those troubled by the continuing
respect that must be accorded civil liberties under crisis
conditions. The fact that the Constitution provides for only
one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited
Milligan case that the framers of the Constitution "limited the
suspension to one great right and left the rest to remain
forever inviolable." While perhaps at times likely to give rise
to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is
to be taken into careful consideration.
3. For it is a truism that he Constitution is paramount, and
the Supreme Court has no choice but to apply its provisions
in the determination of actual cases and controversies
before it. Nor is this all. The protection of the citizen and the
maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.5The exercise thereof
according to Justice Laurel requires that it gives effect to
the supreme law to the extent in clear cases of setting aside
legislative and executive action.6 The supreme mandates of
the Constitution are not to be loosely brushed
aside.7 Otherwise, the Bill or Rights might be emasculated
into mere expressions of sentiment.8Speaking of this Court,
Justice Abad Santos once pertinently observed: "This court
owes its own existence to that great instrument and derives
all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the
Constitution."9 Justice Tuason would thus apply the
constitutional rights with undeviating rigidity: "To the plea
that the security of the State would be jeopardized by the
release of the defendants on bail, the answer is that the
existence of danger is never a justification for courts to
tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding
to no pressure of convenience, expediency, or the so-called
'judicial statesmanship.' The Legislature itself can not
infringe them, and no court conscious of its responsibilities
and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the
Nation, let the Constitution be amended, or abolished. It is
trite to say that, while the Constitution stands, the courts of
justice as the repository of civil liberty are bound to protect
and maintain undiluted individual rights." 10
It is in that context, to my mind, that the petitions before us
should be appraised, for in terms of physical, as
distinguished from intellectual, liberty, the privilege of the
writ of habeas corpus occupies a place second to none. As
was stressed in Gumabon v. Director of Prisons: 11 "Rightly
then could Chafee refer to the writ 'as the most important
human rights provision' in the fundamental law." Care is to
be taken then lest in the inquiry that must be undertaken to
determine whether the constitutional requisites justifying a
suspension are present, the effects thereof as to the other
civil liberties are not fully taken into account. It affords no
justification to say that such a move was prompted by the
best motives and loftiest of intentions. Much less can there
be acceptance of the view, as contended by one of the
counsel for respondents, that between the safety of the
overwhelming majority of Filipinos and the claims of the
petitioners to liberty, the former must prevail. That is to
indulge in the vice of over simplification. Our fundamental
postulate is that the state exists to assure individual rights,
to protect which governments are instituted deriving their
just powers from the consent of the governed. "The cardinal
article of faith of our civilization," according to Frank further,
"is the inviolable character of the individual." 12
4. With all the admitted difficulty then that the function of
judicial review presents in passing upon the executive
determination of suspending the privilege of the writ, there
is still no way of evading such a responsibility, except on
the pain of judicial abdication. It may not admit of doubt that
on this matter this Court, unlike the President, cannot lay
claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant
for an unquestioning and uncritical acceptance of what was
done. It cannot simply fold its hands and evince an attitude
of unconcern. It has to decide the case. This it does by
applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an
unlawful deprivation of liberty, they are entitled to the writ
prayed for. If the suspension of the privilege be the
justification, they could, as they did, challenge its validity.
To repeat, this Court, even if denied the fullness of
information and the conceded grasp of the Executive still
must adjudicate the matter as best it can. It has to act not
by virtue of its competence but by the force of its
commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase
Cardozo, of preserving the great ideals of liberty and
equally against the erosion of possible encroachments,
whether minute or extensive. 14 Even if there be no showing
then of constitutional infirmity, at least one other branch of
the government, that to which such an awesome duty had
been conferred has had the opportunity of reflecting on the
matter with detachment, with objectivity, and with full
awareness of the commands of the Constitution as well as
the realities of the situation.
5. Nor is the power of the judiciary to so inquire, negated as
contended by respondents, by reliance on the doctrine of
political questions. The term has been made applicable to
controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference
must be paid. 15 It has likewise been employed loosely to
characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof. 16 If to be de-
limited with accuracy, "political questions" should refer to
such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to which full
discretionary authority is vested either in the Presidency or
Congress. It is thus beyond the competence of the judiciary
to pass upon. 17 Unless, clearly falling within the above
formulation, the decision reached by the political branches
whether in the form of a congressional act or an executive
order could be tested in court. Where private rights are
affected, the judiciary has no choice but to look into its
validity. It is not to be lost sight of that such a power comes
into play if there is an appropriate proceeding that may be
filed only after either coordinate branch has acted. Even
when the Presidency or Congress possesses plenary
power, its improvidence exercise or the abuse thereof, if
shown, may give rise to a justiciable controversy. 18 For the
constitutional grant of authority is not usually unrestricted.
There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper
exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The
question thus posed is judicial rather than political. So it is
in the matter before us so clearly explained in the opinion of
the Chief Justice.
6. The doctrine announced in Montenegro v.
Castañeda 19 that such a question is political has thus been
laid to rest. It is about time too. It owed its existence to the
compulsion exerted by Barcelon v. Baker, a 1905
decision. 20 This Court was partly misled by an undue
reliance in the latter case on what it considered to be
authoritative pronouncements from such illustrious
American jurists as Marshall, Story, and Taney. That is to
misread what was said by them. This is most evidence in
the case of Chief Justice Marshall, whose epochal Marbury
v. Madison 21 was cited. Why that was so is difficult to
understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its
origin notwithstanding the absence of any explicit provision
in the American Constitution empowering the courts to do
so. Thus: "It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply
the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law be
in opposition to the constitution: if both the law and the
constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding
the constitution; or conformably to the constitution,
disregarding the law; the court must determine which of
these conflicting rules governs the case. This is of the very
essence of judicial duty. If, the, the courts are to regard the
constitution, and the constitution is superior to any ordinary
act of the legislature, the constitution, and not such ordinary
act, must govern the case to which they both apply." 22
Nor is the excerpt from Justice Story, speaking for the
United States Supreme Court, in Martin v. Mott, 23 as made
clear in the opinion of the Chief Justice, an authority directly
in point. There, a militiaman had been convicted of failing to
respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy
the judgment. He brought an action of replevin. The
American Constitution empowers its Congress "to provide
for calling forth the Militia" in certain cases, and Congress
did provide that in those cases the President should have
authority to make the call. All that Justice Story did in
construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority
of the American President to decide whether the exigency
has arisen. In stating that such power was exclusive and
thus had a conclusive effect, he relied on the language
employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of
the writ is, as shown, anything but that. 24 Chief Justice
Taney, in Luther v. Borden, 25 likewise had to deal with a
situation involving the calling out of the militia. As a matter
of fact, an eminent commentator speaking of the two above
decisions had this apt observation: "The common element
in these opinions would seem to be a genuine judicial
reluctance to speak in a situation where the voice of the
Court, even if heard, could not have any effect. More than
this, both Story and Taney seem to share the suspicion,
unusual in them, that under a popular form of government
there are certain questions that the political branches must
be trusted to answer with finality." 26 What was said next is
even more pertinent. Thus: "It would be dangerous and
misleading to push the principles of these cases too far,
especially the doctrine of 'political questions' as implied in
Luther v. Borden. Given the opportunity to afford a
grievously injured citizen relief from a palpably unwarranted
use of presidential or military power, especially when the
question at issue falls in the penumbra between the
'political' and the 'justiciable', the Court will act as if it had
never heard of this doctrine and its underlying assumption
that there are some powers against which the judiciary
simply cannot be expected to act as the last line of
defense." 27 It would thus seem evidence that support for
the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the
mischief to which it does lend itself of an undue diminution
of judicial power to the prejudice of constitutional rights.
7. With such presidential determination of the existence of
the conditions required by the Constitution to justify a
suspension of the privilege of the writ no longer conclusive
on the other branches, this Court may thus legitimately
inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now
stands, not as it was originally issued, is valid. The starting
point must be a recognition that the power to suspend the
privilege of the writ belongs to the Executive, subject to
limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted
by this Tribunal is necessarily limited then to the
ascertainment of whether or not such a suspension, in the
light of the credible information furnished the President, was
arbitrary. Such a test met with the approval of the chief
counsel for petitioners, Senator Jose W. Diokno. To
paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action
taken. One who is not the Executive but equally
knowledgeable may entertain a different view, but the
decision rests with the occupant of the office. As would be
immediately apparent even from a cursory perusal of the
data furnished the President, so impressively summarized
in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the
steps taken by him to limit the area where the suspension
operates as well as his instructions attested to a firm resolve
on his part to keep strictly within the bounds of his authority.
Under the circumstances, the decision reached by the Court
that no finding of unconstitutionality is warranted
commends itself for approval. The most that can be said is
that there was a manifestation of presidential power well-
nigh touching the extreme border of his conceded
competence, beyond which a forbidden domain lies. The
requisite showing of either improvidence or abuse has not
been made.
8. Why the dissent then. My basic premise is that the
suspension of the privilege of the writ partakes of an
executive action which if valid binds all who are within its
operations. The function of enacting a legal norm general in
character appertains to either Congress or the President.
Its specific application to particular individuals, like
petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its
validity maybe tested in courts. Even if valid, any one may
seek judicial determination as to whether he is embraced
within its terms. After our declaration of the validity of the
Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the
meticulous care with which the Chief Justice, after reaching
the conclusion that petitioners are covered by the
suspension, saw to it that their constitutional rights are duly
safeguarded in whatever proceedings they would have
thereafter to face. There is thus as assurance that as far as
human foresight can anticipate matters, the possibility of
abuse is minimized.
The matter, for me, could be viewed independently of
whether or not petitioners, by the conduct imputed to them,
could be detained further by virtue of the suspension of the
privilege of the writ. For admittedly, a supervening fact, the
Executive's determination to have them charged according
to the ordinary procedural rules, did present itself. There
was thus introduced an element decisive in its
consequences. They are entitled to treatment no different
from that accorded any other individual facing possible
criminal charges. The opinion of the Chief Justice is correct
in pointing out that such an approach follows the dictum of
Justice Tuason, speaking for himself in Nava v.
Gatmaitan, 28 where a majority of five, lacking just one vote
to enable this Court to reach a binding decision, did arrive
at the conclusion that the suspension of the privilege of the
writ does not suspend the right to bail. Thus: "By the same
token, if and when formal complaint is presented, the court
steps in and the executive steps out. The detention ceases
to be an executive and becomes a judicial concern.
Thereupon the corresponding court assumes its role and
the judicial process takes its course to the exclusion of the
executive or the legislative departments. Hence forward,
the accused is entitled to demand all the constitutional
safeguards and privileges essential to due
process." 29 Parenthetically, it may be observed that the
above view reflects the stand taken by Justice Recto,
fortified by Justice Laurel, drawing heavily on continental
juristic thought, both of whom, having retired from the bench
and thereafter having been elected to the Senate, were
invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners
still detained ought not to be further deprived of their liberty
in the absence of a warrant of arrest for whatever offense
they may be held to answer, to be issued by a judge after a
finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search
and seizure. 30 Moreover, to keep them in confinement after
the ordinary processes of the law are to be availed of, as
thereafter decreed by the Executive itself is to ignore the
safeguard in the Bill of Rights that no person shall be held
to answer for a criminal offense without due process of
law. 31 That would explain why with full recognition of the
sense of realism that infuses the opinion of the Court, I
cannot, from the above standpoint, reach the same
conclusion they did. These six petitioners, Rodolfo del
Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar,
Angelo de los Reyes and Teresito Sison, have, for me,
become immune from the operation of the proclamation
suspending the privilege of the writ of habeas corpus and
are thus entitled to their liberty. I am reinforced in my
conviction by the well-settled principle of constitutional
construction that if there are two possible modes of
interpretation, that one which raises the least constitutional
doubt should be preferred. Certainly, to my way of thinking,
the choice is obvious. That interpretation which would throw
the full mantle of protection afforded by the Constitution to
those unfortunate enough to be caught in the meshes of
criminal law is more in keeping with the high estate
accorded constitutional rights.
There is another consideration that strengthens my
conviction on the matter. The language of the Constitution
would seem to imply at the most that the suspension of the
privilege of the writ renders it unavailable for the time being.
Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is
allowable.32Such a doctrine is no doubt partly traceable to
Anglo-American legal history where as pointed out by
Maine: "Substantive law has at first the look of being
gradually secreted in the interstices of procedure." 33 The
writ of habeas corpus then is more than just an efficacius
device or the most speedy means of obtaining one's liberty.
It has become a most valuable substantive right. It would
thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting
executive rule the moment charges are filed be accorded
acceptance. Thereby the number of individuals who would
have to submit to further detention, that may well turn out to
be unjustified, would be reduced. What is more, greater
fidelity is manifested to the principle that liberty is the rule
and restraint the exception.
I am not of course insensible to the observation in the
opinion of the Court that this concept could be an obstacle
to the early resumption of the ordinary judicial process as
the Executive might be minded to postpone resort to it,
considering that there would necessarily be an end to the
detention at that early stage of individuals who continue to
pose risk to the safety of the government. It does occur to
me, however, that the presumption should be that the high
executive dignitaries can be trusted to act in accordance
with the dictates of good faith and the command of the
Constitution. At least, such seems to be the case now. The
opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in
the lower category, who in their zeal or even from less
worthy motives might make a mockey of the other
constitutional rights. That is as it should be. It should
continue to be so even if there be acceptance of the
doctrine enunciated by Justice Tuason. There is, for me at
least, no undue cause for pessimism.
These is to my mind another reinforcement to this approach
to the question before us, perhaps one based more on
policy rather than strictly legal considerations. The
petitioners who have not been released are youth leaders,
who for motives best known to them, perhaps excess of
idealism, impatience with existing conditions, even
overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through
means of which the law does not disapprove. It would be
premature at this stage to say whether or not their activities
have incurred for them a penal sanction, which certainly
would be appropriate if their conduct is beyond the pale.
Even they should recognize that the existing order has the
right to defendant itself against those who would destroy it.
Nonetheless as a constitutional democracy can justifiably
pride itself on its allegiance to ways of persuasion rather
than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its
beneficent influence on their future course of conduct. This
is not by any means to intimate that my brethren view
matters differently. Far from it. Any difference if at all in the
positions taken is a question of emphasis. Rightly, the
opinion of the Chief Justice stresses the importance of the
rule of law. It is to be hoped that with a proper understanding
of what has been decided by the Court today, there would
be a diminution of the wholesale condemnation of the
present system of government by some sectors of the youth
and perhaps even lead to much-needed refinement in the
volume and quality of their utterances. It could even
conceivably, not only for them but for others of a less radical
cast of mind, but equally suffering from disenchantment and
disillusion, induce a reassessment and reappraisal of their
position, even if from all appearances their commitment and
dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation
of the merits of a constitutional democracy. For thereby, it
demonstrates that it lives up to its ideas; it strives to act in
accordance with what it professes. Its appeal for all sectors
or society becomes strengthened and vitalized. Nor do I
close my eyes to the risk that such an attitude towards those
who constitute a source of danger entails. That for me is not
conclusive. With nations, as with ordinary mortals, that is
unavoidable. Repose, in the often-quoted aphorism of
Holmes, is not the destiny of man.
9. One last observation. It would appear to me that if there
is really a resolve to maintain inviolate constitutional rights
for all, more especially so for those inclined and disposed
to differ and to be vocal, perhaps even intemperate, in their
criticism, that serious thought should be given to the
desirability of removing from the President his power to
suspend the privilege of the writ of habeas corpus as well
as the power to declare martial law. Nor would the
government be lacking in authority to cope with the crisis of
invasion, insurrection, or rebellion or lawless violence, as
the President as commander-in-chief can summon the aid
of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and
martial law beyond the power of the President to declare,
there is a greater likelihood as far as the rights of the
individual are concerned, of the Constitution remaining at
all times supreme, as it ought to be, whether it be in peace
or in war or under other crisis conditions. As long, however,
as such a presidential prerogative exists, it would not be
proper for the courts not to accord recognition to its
exercise, if there be observance of the limitations imposed
by the Constitution. At the most, they can only through
construction nullify what would amount to an
unconstitutional application. How desirable it would be then,
to my way of thinking, if the Constitution would strip the
President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the
government would be neither too strong for the liberties of
the people nor too weak to maintain its existence. This is a
matter though appropriately addressed to the Constitutional
Convention.
On the purely legal aspect, however, let me reiterate that
my acceptance of the Tuason dictum in the Nava case did
result in my inability to concur fully with the opinion of the
Chief Justice, which, as pointed out at the outset, is
possessed of a high degree of merit.
Separate Opinions
CASTRO and BARREDO, JJ., concurring:
While concurring fully in the opinion of the Court, we
nevertheless write separately to answer, from our own
perspective, a point which Mr. Justice Fernando makes in
his dissent. His view, as we understand it, is that while an
individual may be detained beyond the maximum detention
period fixed by law when the privilege of the writ of habeas
corpus is suspended, such individual is nevertheless
entitled to be released from the very moment a formal
complaint is filed in court against him. The theory seems to
be that from the time the charge is filed, the court acquires,
because the executive officials abdicate, jurisdiction.
This view is based on the separate opinion of Mr. Justice
Pedro Tuason in Nava vs. Gatmaitan.1 Justice Tuason, in
part, said:
All persons detained for investigation by
the executive department are under
executive control. It is here where the
Constitution tells the court to keep their
hands off — unless the cause of the
detention be for an offense other than
rebellion or insurrection, which is another
matter.
By the same token, if and when a formal
complaint is presented, the court steps in
and the executive steps out. The detention
ceases to be an executive and becomes a
judicial concern...
But the issue to which the Supreme Court Justices
in Nava individually addressed themselves is radically
disparate from that raised in these cases. There the
question was whether after the detainees had been formally
charged in court and an order for their arrest had been
issued, they were entitled to bail. It was on that question
that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had
been accused in court, the question of release on bail was
a matter that the court should decide.
Upon the other hand, the question here presented is
whether the detainees should be released forthwith upon
the filing of charges against them in court and cannot
thereafter be re-arrested except only by court order. This is
a totally different question. It is our submission that they are
not entitled to be released. The dissent is, we believe,
based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and
the arresting officer is thereby divested of custody over him.
Except in a metaphorical sense, the detainee is not
delivered or surrendered at all to the judicial authorities.
What the phrase "delivered to the court" simply means is
that from the time a person is indicted in court, the latter
acquires jurisdiction over the subject-matter. 2 The detainee
remains in the custody of the detaining officer, under the
same authority invoked for the detention, until the court
decides whether there is probable cause to order his arrest.
Under ordinary circumstances, when a person is arrested
without a warrant and is charged in court, he is not released.
He is held until the judicial authority orders either his release
or his confinement. It is no argument to say that under
Article III, section 1 (3) of the Constitution only a court can
order the arrest of an individual. Arrests without warrant are
familiar occurrences, and they have been upheld as
constitutional.3
What is more, the privilege of the writ was suspended
precisely to authorize the detention of persons believed to
be plotting against the security of the State until the courts
can act on their respective cases. To require their
peremptory release upon the mere filing of charges against
them, without giving the proper court opportunity and time
to decide the question of probable cause, would obviously
be to defeat the very basic purpose of the suspension. We
think our role as judges in the cases at bar is clear. After
finding that the Presidential decree was validly issued, we
should give it effect. To uphold its validity and then try to
dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise
of the Presidential prerogative.
Not only that. If the rule were that the detainees must be
released upon the mere filing of charges against them in
court, it is unlikely that the executive officials would have
filed the charges because of their awareness of the
continuing danger which in the first place impelled the arrest
of the detainees, and the end result would be to inflict on
the latter a much longer period of deprivation of personal
liberty than is warranted.
Whatever our personal views may be of the power to
suspend, the fact remains that the power is there, writ large
and indubitable in the Constitution. It is far too easy to write
anthologies on the side of civil liberties or on the side of
governmental order, depending on one's inclination or
commitment. But that is not our function. Constitutional
issues, it has been said, do not take the form of right versus
wrong, but of right versus right. And the Court's function, as
we see it, is, fundamentally to moderate the clash of values,
and not to inflate them into constitutional dimensions.
Where it is possible, we should avoid passing on a
constitutional question. But where there is no escape from
the duty of abstention, our further duty is to decide the
question of constitutional validity on a less heroic plane.
And that is what we have tried to do in pointing out that the
ordinary rules of criminal procedure provide an adequate
answer to Mr. Justice Fernando's problem. That solution is
for the arresting officer to hold the person detained until the
court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the
arresting officer must release the detainee upon the
expiration of the maximum detention time allowed by law, if
he has not delivered the detainee to the court within that
period.
To insist on the procedural aspect of a constitutional
problem as a manner of solving it is, after all, no less to be
libertarian. Insistence on it is, to us, and in point of fact, one
of the cornerstone of liberalism.
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice easily
ranks with his many landmark opinions in Constitutional
Law and is in the tradition of the great judicial
pronouncements from this Tribunal. Skillful in its analysis,
impressive as to its learning, comprehensive in its scope,
and compelling in its logic, it exerts considerable persuasive
force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the
conclusion that the six petitioners still under detention
should not be set free. It is for me a source of deep regret
that having gone quite far in manifesting the utmost
sympathy for and conformity with the claims of civil liberties,
it did not go farther. Candor induces the admission though
that the situation realistically viewed may not justify going
all the way. Nonetheless the deeply-rooted conviction as to
the undoubted primacy of constitutional rights, even under
circumstances the least propitious, precludes me from
joining my brethren in that portion of the decision reached.
Nor should I let this opportunity pass without acknowledging
the fairness, even the generosity, in the appraisal of my
position in the position of the Chief Justice.
1. The function of judicial review fitly characterized as both
delicate and awesome is never more so than when the
judiciary is called upon to pass on the validity of an act of
the President arising from the exercise of a power granted
admittedly to cope with an emergency or crisis situation.
More specifically, with reference to the petitions before us,
the question that calls for prior consideration is whether the
suspension of the privilege of the writ of habeas corpusis
tainted by constitutional infirmity. What the President did
attested to an executive determination of the existence of
the conditions that warranted such a move. For one of the
mandatory provisions of the Bill of Rights1 is that no such
suspension is allowable, except in cases of invasion,
insurrection or rebellion, when the public safety requires,
and, even, then, only in such places and for such period of
time as may be necessary.2 There is the further provision
that the constitutional official so empowered to take such a
step is the President.3 The exceptional character of the
situation is thus underscored. The presumption would seem
to be that if such a step were taken, there must have been
a conviction on the part of the Executive that he could not,
in the fulfillment of the responsibility entrusted to him, avoid
doing so. That decision is his to make; it is not for the
judiciary. It is therefore encased in the armor of what must
have been a careful study on his part, in the light of relevant
information which as Commander-in-Chief he is furnished,
ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the
sphere of individual freedom contracts and the scope of
governmental authority expands during times of
emergency, it becomes manifest why an even greater
degree of caution and circumspection must be exercised by
the judiciary when, on this matter, it is called upon to
discharge the function of judicial review.
2. Not that the judiciary has any choice on the matter. That
view would indict itself for unorthodoxy if it maintains that
the existence of rebellion suffices to call for the disregard of
the applicable constitutional guarantees. Its implication
would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the
American Supreme Court in the leading case of Ex-
parte Milligan4 stated: "The Constitution is a law for rulers
and for people equally in war and in peace and covers with
the shield of its protection all classes of men at all times and
under all circumstances." This ringing affirmation should at
the very least give pause to those troubled by the continuing
respect that must be accorded civil liberties under crisis
conditions. The fact that the Constitution provides for only
one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited
Milligan case that the framers of the Constitution "limited the
suspension to one great right and left the rest to remain
forever inviolable." While perhaps at times likely to give rise
to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is
to be taken into careful consideration.
3. For it is a truism that he Constitution is paramount, and
the Supreme Court has no choice but to apply its provisions
in the determination of actual cases and controversies
before it. Nor is this all. The protection of the citizen and the
maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.5The exercise thereof
according to Justice Laurel requires that it gives effect to
the supreme law to the extent in clear cases of setting aside
legislative and executive action.6 The supreme mandates of
the Constitution are not to be loosely brushed
aside.7 Otherwise, the Bill or Rights might be emasculated
into mere expressions of sentiment.8Speaking of this Court,
Justice Abad Santos once pertinently observed: "This court
owes its own existence to that great instrument and derives
all its powers therefrom. In the exercise of its powers and
jurisdiction, this court is bound by the provisions of the
Constitution."9 Justice Tuason would thus apply the
constitutional rights with undeviating rigidity: "To the plea
that the security of the State would be jeopardized by the
release of the defendants on bail, the answer is that the
existence of danger is never a justification for courts to
tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding
to no pressure of convenience, expediency, or the so-called
'judicial statesmanship.' The Legislature itself can not
infringe them, and no court conscious of its responsibilities
and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the
Nation, let the Constitution be amended, or abolished. It is
trite to say that, while the Constitution stands, the courts of
justice as the repository of civil liberty are bound to protect
and maintain undiluted individual rights." 10
It is in that context, to my mind, that the petitions before us
should be appraised, for in terms of physical, as
distinguished from intellectual, liberty, the privilege of the
writ of habeas corpus occupies a place second to none. As
was stressed in Gumabon v. Director of Prisons: 11 "Rightly
then could Chafee refer to the writ 'as the most important
human rights provision' in the fundamental law." Care is to
be taken then lest in the inquiry that must be undertaken to
determine whether the constitutional requisites justifying a
suspension are present, the effects thereof as to the other
civil liberties are not fully taken into account. It affords no
justification to say that such a move was prompted by the
best motives and loftiest of intentions. Much less can there
be acceptance of the view, as contended by one of the
counsel for respondents, that between the safety of the
overwhelming majority of Filipinos and the claims of the
petitioners to liberty, the former must prevail. That is to
indulge in the vice of over simplification. Our fundamental
postulate is that the state exists to assure individual rights,
to protect which governments are instituted deriving their
just powers from the consent of the governed. "The cardinal
article of faith of our civilization," according to Frank further,
"is the inviolable character of the individual." 12
4. With all the admitted difficulty then that the function of
judicial review presents in passing upon the executive
determination of suspending the privilege of the writ, there
is still no way of evading such a responsibility, except on
the pain of judicial abdication. It may not admit of doubt that
on this matter this Court, unlike the President, cannot lay
claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant
for an unquestioning and uncritical acceptance of what was
done. It cannot simply fold its hands and evince an attitude
of unconcern. It has to decide the case. This it does by
applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an
unlawful deprivation of liberty, they are entitled to the writ
prayed for. If the suspension of the privilege be the
justification, they could, as they did, challenge its validity.
To repeat, this Court, even if denied the fullness of
information and the conceded grasp of the Executive still
must adjudicate the matter as best it can. It has to act not
by virtue of its competence but by the force of its
commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase
Cardozo, of preserving the great ideals of liberty and
equally against the erosion of possible encroachments,
whether minute or extensive. 14 Even if there be no showing
then of constitutional infirmity, at least one other branch of
the government, that to which such an awesome duty had
been conferred has had the opportunity of reflecting on the
matter with detachment, with objectivity, and with full
awareness of the commands of the Constitution as well as
the realities of the situation.
5. Nor is the power of the judiciary to so inquire, negated as
contended by respondents, by reliance on the doctrine of
political questions. The term has been made applicable to
controversies clearly non-judicial and therefore beyond its
jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior
legislative or executive determination to which deference
must be paid. 15 It has likewise been employed loosely to
characterize a suit where the party proceeded against is the
President or Congress, or any branch thereof. 16 If to be de-
limited with accuracy, "political questions" should refer to
such as would under the Constitution be decided by the
people in their sovereign capacity or in regard to which full
discretionary authority is vested either in the Presidency or
Congress. It is thus beyond the competence of the judiciary
to pass upon. 17 Unless, clearly falling within the above
formulation, the decision reached by the political branches
whether in the form of a congressional act or an executive
order could be tested in court. Where private rights are
affected, the judiciary has no choice but to look into its
validity. It is not to be lost sight of that such a power comes
into play if there is an appropriate proceeding that may be
filed only after either coordinate branch has acted. Even
when the Presidency or Congress possesses plenary
power, its improvidence exercise or the abuse thereof, if
shown, may give rise to a justiciable controversy. 18 For the
constitutional grant of authority is not usually unrestricted.
There are limits to what may be done and how it is to be
accomplished. Necessarily then, the courts in the proper
exercise of judicial review could inquire into the question of
whether or not either of the two coordinate branches has
adhered to what is laid down by the Constitution. The
question thus posed is judicial rather than political. So it is
in the matter before us so clearly explained in the opinion of
the Chief Justice.
6. The doctrine announced in Montenegro v.
Castañeda 19 that such a question is political has thus been
laid to rest. It is about time too. It owed its existence to the
compulsion exerted by Barcelon v. Baker, a 1905
decision. 20 This Court was partly misled by an undue
reliance in the latter case on what it considered to be
authoritative pronouncements from such illustrious
American jurists as Marshall, Story, and Taney. That is to
misread what was said by them. This is most evidence in
the case of Chief Justice Marshall, whose epochal Marbury
v. Madison 21 was cited. Why that was so is difficult to
understand. For it speaks to the contrary. It was by virtue of
this decision that the function of judicial review owes its
origin notwithstanding the absence of any explicit provision
in the American Constitution empowering the courts to do
so. Thus: "It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply
the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law be
in opposition to the constitution: if both the law and the
constitution apply to a particular case, so that the court must
either decide that case conformably to the law, disregarding
the constitution; or conformably to the constitution,
disregarding the law; the court must determine which of
these conflicting rules governs the case. This is of the very
essence of judicial duty. If, the, the courts are to regard the
constitution, and the constitution is superior to any ordinary
act of the legislature, the constitution, and not such ordinary
act, must govern the case to which they both apply." 22
Nor is the excerpt from Justice Story, speaking for the
United States Supreme Court, in Martin v. Mott, 23 as made
clear in the opinion of the Chief Justice, an authority directly
in point. There, a militiaman had been convicted of failing to
respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy
the judgment. He brought an action of replevin. The
American Constitution empowers its Congress "to provide
for calling forth the Militia" in certain cases, and Congress
did provide that in those cases the President should have
authority to make the call. All that Justice Story did in
construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority
of the American President to decide whether the exigency
has arisen. In stating that such power was exclusive and
thus had a conclusive effect, he relied on the language
employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of
the writ is, as shown, anything but that. 24 Chief Justice
Taney, in Luther v. Borden, 25 likewise had to deal with a
situation involving the calling out of the militia. As a matter
of fact, an eminent commentator speaking of the two above
decisions had this apt observation: "The common element
in these opinions would seem to be a genuine judicial
reluctance to speak in a situation where the voice of the
Court, even if heard, could not have any effect. More than
this, both Story and Taney seem to share the suspicion,
unusual in them, that under a popular form of government
there are certain questions that the political branches must
be trusted to answer with finality." 26 What was said next is
even more pertinent. Thus: "It would be dangerous and
misleading to push the principles of these cases too far,
especially the doctrine of 'political questions' as implied in
Luther v. Borden. Given the opportunity to afford a
grievously injured citizen relief from a palpably unwarranted
use of presidential or military power, especially when the
question at issue falls in the penumbra between the
'political' and the 'justiciable', the Court will act as if it had
never heard of this doctrine and its underlying assumption
that there are some powers against which the judiciary
simply cannot be expected to act as the last line of
defense." 27 It would thus seem evidence that support for
the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the
mischief to which it does lend itself of an undue diminution
of judicial power to the prejudice of constitutional rights.
7. With such presidential determination of the existence of
the conditions required by the Constitution to justify a
suspension of the privilege of the writ no longer conclusive
on the other branches, this Court may thus legitimately
inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now
stands, not as it was originally issued, is valid. The starting
point must be a recognition that the power to suspend the
privilege of the writ belongs to the Executive, subject to
limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted
by this Tribunal is necessarily limited then to the
ascertainment of whether or not such a suspension, in the
light of the credible information furnished the President, was
arbitrary. Such a test met with the approval of the chief
counsel for petitioners, Senator Jose W. Diokno. To
paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action
taken. One who is not the Executive but equally
knowledgeable may entertain a different view, but the
decision rests with the occupant of the office. As would be
immediately apparent even from a cursory perusal of the
data furnished the President, so impressively summarized
in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the
steps taken by him to limit the area where the suspension
operates as well as his instructions attested to a firm resolve
on his part to keep strictly within the bounds of his authority.
Under the circumstances, the decision reached by the Court
that no finding of unconstitutionality is warranted
commends itself for approval. The most that can be said is
that there was a manifestation of presidential power well-
nigh touching the extreme border of his conceded
competence, beyond which a forbidden domain lies. The
requisite showing of either improvidence or abuse has not
been made.
8. Why the dissent then. My basic premise is that the
suspension of the privilege of the writ partakes of an
executive action which if valid binds all who are within its
operations. The function of enacting a legal norm general in
character appertains to either Congress or the President.
Its specific application to particular individuals, like
petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its
validity maybe tested in courts. Even if valid, any one may
seek judicial determination as to whether he is embraced
within its terms. After our declaration of the validity of the
Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the
meticulous care with which the Chief Justice, after reaching
the conclusion that petitioners are covered by the
suspension, saw to it that their constitutional rights are duly
safeguarded in whatever proceedings they would have
thereafter to face. There is thus as assurance that as far as
human foresight can anticipate matters, the possibility of
abuse is minimized.
The matter, for me, could be viewed independently of
whether or not petitioners, by the conduct imputed to them,
could be detained further by virtue of the suspension of the
privilege of the writ. For admittedly, a supervening fact, the
Executive's determination to have them charged according
to the ordinary procedural rules, did present itself. There
was thus introduced an element decisive in its
consequences. They are entitled to treatment no different
from that accorded any other individual facing possible
criminal charges. The opinion of the Chief Justice is correct
in pointing out that such an approach follows the dictum of
Justice Tuason, speaking for himself in Nava v.
Gatmaitan, 28 where a majority of five, lacking just one vote
to enable this Court to reach a binding decision, did arrive
at the conclusion that the suspension of the privilege of the
writ does not suspend the right to bail. Thus: "By the same
token, if and when formal complaint is presented, the court
steps in and the executive steps out. The detention ceases
to be an executive and becomes a judicial concern.
Thereupon the corresponding court assumes its role and
the judicial process takes its course to the exclusion of the
executive or the legislative departments. Hence forward,
the accused is entitled to demand all the constitutional
safeguards and privileges essential to due
process." 29 Parenthetically, it may be observed that the
above view reflects the stand taken by Justice Recto,
fortified by Justice Laurel, drawing heavily on continental
juristic thought, both of whom, having retired from the bench
and thereafter having been elected to the Senate, were
invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners
still detained ought not to be further deprived of their liberty
in the absence of a warrant of arrest for whatever offense
they may be held to answer, to be issued by a judge after a
finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search
and seizure. 30 Moreover, to keep them in confinement after
the ordinary processes of the law are to be availed of, as
thereafter decreed by the Executive itself is to ignore the
safeguard in the Bill of Rights that no person shall be held
to answer for a criminal offense without due process of
law. 31 That would explain why with full recognition of the
sense of realism that infuses the opinion of the Court, I
cannot, from the above standpoint, reach the same
conclusion they did. These six petitioners, Rodolfo del
Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar,
Angelo de los Reyes and Teresito Sison, have, for me,
become immune from the operation of the proclamation
suspending the privilege of the writ of habeas corpus and
are thus entitled to their liberty. I am reinforced in my
conviction by the well-settled principle of constitutional
construction that if there are two possible modes of
interpretation, that one which raises the least constitutional
doubt should be preferred. Certainly, to my way of thinking,
the choice is obvious. That interpretation which would throw
the full mantle of protection afforded by the Constitution to
those unfortunate enough to be caught in the meshes of
criminal law is more in keeping with the high estate
accorded constitutional rights.
There is another consideration that strengthens my
conviction on the matter. The language of the Constitution
would seem to imply at the most that the suspension of the
privilege of the writ renders it unavailable for the time being.
Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is
allowable.32Such a doctrine is no doubt partly traceable to
Anglo-American legal history where as pointed out by
Maine: "Substantive law has at first the look of being
gradually secreted in the interstices of procedure." 33 The
writ of habeas corpus then is more than just an efficacius
device or the most speedy means of obtaining one's liberty.
It has become a most valuable substantive right. It would
thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting
executive rule the moment charges are filed be accorded
acceptance. Thereby the number of individuals who would
have to submit to further detention, that may well turn out to
be unjustified, would be reduced. What is more, greater
fidelity is manifested to the principle that liberty is the rule
and restraint the exception.
I am not of course insensible to the observation in the
opinion of the Court that this concept could be an obstacle
to the early resumption of the ordinary judicial process as
the Executive might be minded to postpone resort to it,
considering that there would necessarily be an end to the
detention at that early stage of individuals who continue to
pose risk to the safety of the government. It does occur to
me, however, that the presumption should be that the high
executive dignitaries can be trusted to act in accordance
with the dictates of good faith and the command of the
Constitution. At least, such seems to be the case now. The
opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in
the lower category, who in their zeal or even from less
worthy motives might make a mockey of the other
constitutional rights. That is as it should be. It should
continue to be so even if there be acceptance of the
doctrine enunciated by Justice Tuason. There is, for me at
least, no undue cause for pessimism.
These is to my mind another reinforcement to this approach
to the question before us, perhaps one based more on
policy rather than strictly legal considerations. The
petitioners who have not been released are youth leaders,
who for motives best known to them, perhaps excess of
idealism, impatience with existing conditions, even
overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through
means of which the law does not disapprove. It would be
premature at this stage to say whether or not their activities
have incurred for them a penal sanction, which certainly
would be appropriate if their conduct is beyond the pale.
Even they should recognize that the existing order has the
right to defendant itself against those who would destroy it.
Nonetheless as a constitutional democracy can justifiably
pride itself on its allegiance to ways of persuasion rather
than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its
beneficent influence on their future course of conduct. This
is not by any means to intimate that my brethren view
matters differently. Far from it. Any difference if at all in the
positions taken is a question of emphasis. Rightly, the
opinion of the Chief Justice stresses the importance of the
rule of law. It is to be hoped that with a proper understanding
of what has been decided by the Court today, there would
be a diminution of the wholesale condemnation of the
present system of government by some sectors of the youth
and perhaps even lead to much-needed refinement in the
volume and quality of their utterances. It could even
conceivably, not only for them but for others of a less radical
cast of mind, but equally suffering from disenchantment and
disillusion, induce a reassessment and reappraisal of their
position, even if from all appearances their commitment and
dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation
of the merits of a constitutional democracy. For thereby, it
demonstrates that it lives up to its ideas; it strives to act in
accordance with what it professes. Its appeal for all sectors
or society becomes strengthened and vitalized. Nor do I
close my eyes to the risk that such an attitude towards those
who constitute a source of danger entails. That for me is not
conclusive. With nations, as with ordinary mortals, that is
unavoidable. Repose, in the often-quoted aphorism of
Holmes, is not the destiny of man.
9. One last observation. It would appear to me that if there
is really a resolve to maintain inviolate constitutional rights
for all, more especially so for those inclined and disposed
to differ and to be vocal, perhaps even intemperate, in their
criticism, that serious thought should be given to the
desirability of removing from the President his power to
suspend the privilege of the writ of habeas corpus as well
as the power to declare martial law. Nor would the
government be lacking in authority to cope with the crisis of
invasion, insurrection, or rebellion or lawless violence, as
the President as commander-in-chief can summon the aid
of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and
martial law beyond the power of the President to declare,
there is a greater likelihood as far as the rights of the
individual are concerned, of the Constitution remaining at
all times supreme, as it ought to be, whether it be in peace
or in war or under other crisis conditions. As long, however,
as such a presidential prerogative exists, it would not be
proper for the courts not to accord recognition to its
exercise, if there be observance of the limitations imposed
by the Constitution. At the most, they can only through
construction nullify what would amount to an
unconstitutional application. How desirable it would be then,
to my way of thinking, if the Constitution would strip the
President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the
government would be neither too strong for the liberties of
the people nor too weak to maintain its existence. This is a
matter though appropriately addressed to the Constitutional
Convention.
On the purely legal aspect, however, let me reiterate that
my acceptance of the Tuason dictum in the Nava case did
result in my inability to concur fully with the opinion of the
Chief Justice, which, as pointed out at the outset, is
possessed of a high degree of merit.
7) G.R. No. 153675 April 19, 2007
GOVERNMENT OF HONG KONG SPECIAL
ADMINISTRATIVE REGION, represented by the
Philippine Department of Justice, Petitioner,
vs.
HON. FELIXBERTO T. OLALIA, JR. and JUAN ANTONIO
MUÑOZ, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Certiorari under
Rule 65 of the 1997 Rules of Civil Procedure, as amended,
seeking to nullify the two Orders of the Regional Trial Court
(RTC), Branch 8, Manila (presided by respondent Judge
Felixberto T. Olalia, Jr.) issued in Civil Case No. 99-95773.
These are: (1) the Order dated December 20, 2001 allowing
Juan Antonio Muñoz, private respondent, to post bail; and
(2) the Order dated April 10, 2002 denying the motion to
vacate the said Order of December 20, 2001 filed by the
Government of Hong Kong Special Administrative Region,
represented by the Philippine Department of Justice (DOJ),
petitioner. The petition alleges that both Orders were issued
by respondent judge with grave abuse of discretion
amounting to lack or excess of jurisdiction as there is no
provision in the Constitution granting bail to a potential
extraditee.
The facts are:
On January 30, 1995, the Republic of the Philippines and
the then British Crown Colony of Hong Kong signed an
"Agreement for the Surrender of Accused and Convicted
Persons." It took effect on June 20, 1997.
On July 1, 1997, Hong Kong reverted back to the People’s
Republic of China and became the Hong Kong Special
Administrative Region.
Private respondent Muñoz was charged before the Hong
Kong Court with three (3) counts of the offense of
"accepting an advantage as agent," in violation of Section 9
(1) (a) of the Prevention of Bribery Ordinance, Cap. 201 of
Hong Kong. He also faces seven (7) counts of the offense
of conspiracy to defraud, penalized by the common law of
Hong Kong. On August 23, 1997 and October 25, 1999,
warrants of arrest were issued against him. If convicted, he
faces a jail term of seven (7) to fourteen (14) years for each
charge.
On September 13, 1999, the DOJ received from the Hong
Kong Department of Justice a request for the provisional
arrest of private respondent. The DOJ then forwarded the
request to the National Bureau of Investigation (NBI) which,
in turn, filed with the RTC of Manila, Branch 19 an
application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila
issued an Order of Arrest against private respondent. That
same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the
Court of Appeals a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus questioning the
validity of the Order of Arrest.
On November 9, 1999, the Court of Appeals rendered its
Decision declaring the Order of Arrest void.
On November 12, 1999, the DOJ filed with this Court a
petition for review on certiorari, docketed as G.R. No.
140520, praying that the Decision of the Court of Appeals
be reversed.
On December 18, 2000, this Court rendered a Decision
granting the petition of the DOJ and sustaining the validity
of the Order of Arrest against private respondent. The
Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong
Kong Special Administrative Region filed with the RTC of
Manila a petition for the extradition of private respondent,
docketed as Civil Case No. 99-95733, raffled off to Branch
10, presided by Judge Ricardo Bernardo, Jr. For his part,
private respondent filed, in the same case,- a petition for
bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr.
issued an Order denying the petition for bail, holding that
there is no Philippine law granting bail in extradition cases
and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself
from further hearing Civil Case No. 99-95733. It was then
raffled off to Branch 8 presided by respondent judge.
On October 30, 2001, private respondent filed a motion for
reconsideration of the Order denying his application for bail.
This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post
bail, thus:
In conclusion, this Court will not contribute to accused’s
further erosion of civil liberties. The petition for bail is
granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the
condition that accused hereby undertakes that he
will appear and answer the issues raised in these
proceedings and will at all times hold himself
amenable to orders and processes of this Court,
will further appear for judgment. If accused fails in
this undertaking, the cash bond will be forfeited in
favor of the government;
2. Accused must surrender his valid passport to this
Court;
3. The Department of Justice is given immediate
notice and discretion of filing its own motion for hold
departure order before this Court even in
extradition proceeding; and
4. Accused is required to report to the government
prosecutors handling this case or if they so desire
to the nearest office, at any time and day of the
week; and if they further desire, manifest before this
Court to require that all the assets of accused, real
and personal, be filed with this Court soonest, with
the condition that if the accused flees from his
undertaking, said assets be forfeited in favor of the
government and that the corresponding
lien/annotation be noted therein accordingly.
SO ORDERED.
On December 21, 2001, petitioner filed an urgent motion to
vacate the above Order, but it was denied by respondent
judge in his Order dated April 10, 2002.
Hence, the instant petition. Petitioner alleged that the trial
court committed grave abuse of discretion amounting to
lack or excess of jurisdiction in admitting private respondent
to bail; that there is nothing in the Constitution or statutory
law providing that a potential extraditee has a right to bail,
the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent
maintained that the right to bail guaranteed under the Bill of
Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged
deprivation of one’s liberty.
Section 13, Article III of the Constitution provides that the
right to bail shall not be impaired, thus:
Sec. 13. All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this
jurisdiction. Nonetheless, this is not the first time that this
Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail.
In Government of United States of America v. Hon.
Guillermo G. Purganan, Presiding Judge, RTC of Manila,
Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan
Crespo,1 this Court, speaking through then Associate
Justice Artemio V. Panganiban, later Chief Justice, held that
the constitutional provision on bail does not apply to
extradition proceedings. It is "available only in criminal
proceedings," thus:
x x x. As suggested by the use of the word "conviction," the
constitutional provision on bail quoted above, as well as
Section 4, Rule 114 of the Rules of Court, applies only when
a person has been arrested and detained for violation of
Philippine criminal laws. It does not apply to extradition
proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the
presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter
he would be entitled to acquittal, unless his guilt be proved
beyond reasonable doubt" (De la Camara v. Enage, 41
SCRA 1, 6, September 17, 1971, per Fernando, J.,
later CJ). It follows that the constitutional provision on bail
will not apply to a case like extradition, where the
presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail
shall not be impaired even when the privilege of the writ
of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in
criminal proceedings. It must be noted that the suspension
of the privilege of the writ of habeas corpus finds application
"only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion" (Sec. 18,
Art. VIII, Constitution). Hence, the second sentence in the
constitutional provision on bail merely emphasizes the right
to bail in criminal proceedings for the aforementioned
offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not
criminal in nature.
At first glance, the above ruling applies squarely to private
respondent’s case. However, this Court cannot ignore the
following trends in international law: (1) the growing
importance of the individual person in public international
law who, in the 20th century, has gradually attained global
recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty
of countries to observe these universal human rights in
fulfilling their treaty obligations; and (4) the duty of this Court
to balance the rights of the individual under our fundamental
law, on one hand, and the law on extradition, on the other.
The modern trend in public international law is the
primacy placed on the worth of the individual person
and the sanctity of human rights. Slowly, the recognition
that the individual person may properly be a subject of
international law is now taking root. The vulnerable doctrine
that the subjects of international law are limited only to
states was dramatically eroded towards the second half of
the past century. For one, the Nuremberg and Tokyo trials
after World War II resulted in the unprecedented spectacle
of individual defendants for acts characterized as violations
of the laws of war, crimes against peace, and crimes
against humanity. Recently, under the Nuremberg principle,
Serbian leaders have been persecuted for war crimes and
crimes against humanity committed in the former
Yugoslavia. These significant events show that the
individual person is now a valid subject of international law.
On a more positive note, also after World War II, both
international organizations and states gave recognition and
importance to human rights. Thus, on December 10, 1948,
the United Nations General Assembly adopted the
Universal Declaration of Human Rights in which the right to
life, liberty and all the other fundamental rights of every
person were proclaimed. While not a treaty, the principles
contained in the said Declaration are now recognized
as customarily binding upon the members of the
international community. Thus, in Mejoff v. Director of
Prisons,2 this Court, in granting bail to a prospective
deportee, held that under the Constitution, 3the
principles set forth in that Declaration are part of the law of
the land. In 1966, the UN General Assembly also adopted
the International Covenant on Civil and Political Rights
which the Philippines signed and ratified. Fundamental
among the rights enshrined therein are the rights of every
person to life, liberty, and due process.
The Philippines, along with the other members of the family
of nations, committed to uphold the fundamental human
rights as well as value the worth and dignity of every person.
This commitment is enshrined in Section II, Article II of our
Constitution which provides: "The State values the dignity
of every human person and guarantees full respect for
human rights." The Philippines, therefore, has the
responsibility of protecting and promoting the right of every
person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings
before a court, to enable it to decide without delay on the
legality of the detention and order their release if justified.
In other words, the Philippine authorities are under
obligation to make available to every person under
detention such remedies which safeguard their
fundamental right to liberty. These remedies include the
right to be admitted to bail. While this Court
in Purganan limited the exercise of the right to bail to
criminal proceedings, however, in light of the various
international treaties giving recognition and protection to
human rights, particularly the right to life and liberty, a
reexamination of this Court’s ruling in Purganan is in order.
First, we note that the exercise of the State’s power
to deprive an individual of his liberty is not
necessarily limited to criminal proceedings.
Respondents in administrative proceedings, such
as deportation and quarantine,4 have likewise been
detained.
Second, to limit bail to criminal proceedings would
be to close our eyes to our jurisprudential history.
Philippine jurisprudence has not limited the
exercise of the right to bail to criminal proceedings
only. This Court has admitted to bail persons who
are not involved in criminal proceedings. In fact, bail
has been allowed in this jurisdiction to persons in
detention during the pendency of administrative
proceedings, taking into cognizance the obligation
of the Philippines under international conventions
to uphold human rights.
The 1909 case of US v. Go-Sioco5 is illustrative. In this
case, a Chinese facing deportation for failure to secure the
necessary certificate of registration was granted bail
pending his appeal. After noting that the prospective
deportee had committed no crime, the Court opined that "To
refuse him bail is to treat him as a person who has
committed the most serious crime known to law;" and that
while deportation is not a criminal proceeding, some of the
machinery used "is the machinery of criminal law." Thus,
the provisions relating to bail was applied to deportation
proceedings.
In Mejoff v. Director of Prisons6 and Chirskoff v.
Commission of Immigration,7 this Court ruled that foreign
nationals against whom no formal criminal charges have
been filed may be released on bail pending the finality of an
order of deportation. As previously stated, the Court
in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee’s right to bail.
If bail can be granted in deportation cases, we see no
justification why it should not also be allowed in extradition
cases. Likewise, considering that the Universal Declaration
of Human Rights applies to deportation cases, there is no
reason why it cannot be invoked in extradition cases. After
all, both are administrative proceedings where the
innocence or guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail
in this jurisdiction must be viewed in the light of the various
treaty obligations of the Philippines concerning respect for
the promotion and protection of human rights. Under these
treaties, the presumption lies in favor of human liberty.
Thus, the Philippines should see to it that the right to liberty
of every individual is not impaired.
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The
Philippine Extradition Law) defines "extradition" as "the
removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable
the requesting state or government to hold him in
connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the
penal or criminal law of the requesting state or
government."
Extradition has thus been characterized as the right of a
foreign power, created by treaty, to demand the surrender
of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to
surrender him to the demanding state. 8 It is not a criminal
proceeding.9 Even if the potential extraditee is a criminal,
an extradition proceeding is not by its nature criminal, for it
is not punishment for a crime, even though such
punishment may follow extradition.10 It is sui
generis, tracing its existence wholly to treaty obligations
between different nations.11 It is not a trial to determine
the guilt or innocence of the potential extraditee. 12 Nor
is it a full-blown civil action, but one that is merely
administrative in character.13 Its object is to prevent the
escape of a person accused or convicted of a crime and to
secure his return to the state from which he fled, for the
purpose of trial or punishment.14
But while extradition is not a criminal proceeding, it is
characterized by the following: (a) it entails a deprivation of
liberty on the part of the potential extraditee and (b) the
means employed to attain the purpose of extradition is
also "the machinery of criminal law." This is shown by
Section 6 of P.D. No. 1069 (The Philippine Extradition Law)
which mandates the "immediate arrest and temporary
detention of the accused" if such "will best serve the
interest of justice." We further note that Section 20 allows
the requesting state "in case of urgency" to ask for the
"provisional arrest of the accused, pending receipt of
the request for extradition;" and that release from
provisional arrest "shall not prejudice re-arrest and
extradition of the accused if a request for extradition is
received subsequently."
Obviously, an extradition proceeding, while ostensibly
administrative, bears all earmarks of a criminal process. A
potential extraditee may be subjected to arrest, to a
prolonged restraint of liberty, and forced to transfer to
the demanding state following the
proceedings. "Temporary detention" may be a necessary
step in the process of extradition, but the length of time of
the detention should be reasonable.
Records show that private respondent was arrested on
September 23, 1999, and remained incarcerated until
December 20, 2001, when the trial court ordered his
admission to bail. In other words, he had been detained
for over two (2) years without having been convicted of
any crime. By any standard, such an extended period of
detention is a serious deprivation of his fundamental right to
liberty. In fact, it was this prolonged deprivation of liberty
which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of
bail to an extraditee, however, there is no provision
prohibiting him or her from filing a motion for bail, a right to
due process under the Constitution.
The applicable standard of due process, however, should
not be the same as that in criminal proceedings. In the
latter, the standard of due process is premised on the
presumption of innocence of the accused.
As Purganancorrectly points out, it is from this major
premise that the ancillary presumption in favor of admitting
to bail arises. Bearing in mind the purpose of extradition
proceedings, the premise behind the issuance of the arrest
warrant and the "temporary detention" is the possibility of
flight of the potential extraditee. This is based on the
assumption that such extraditee is a fugitive from
justice.15 Given the foregoing, the prospective extraditee
thus bears the onus probandi of showing that he or she is
not a flight risk and should be granted bail.
The time-honored principle of pacta sunt
servanda demands that the Philippines honor its obligations
under the Extradition Treaty it entered into with the Hong
Kong Special Administrative Region. Failure to comply with
these obligations is a setback in our foreign relations and
defeats the purpose of extradition. However, it does not
necessarily mean that in keeping with its treaty obligations,
the Philippines should diminish a potential extraditee’s
rights to life, liberty, and due process. More so, where these
rights are guaranteed, not only by our Constitution, but also
by international conventions, to which the Philippines is a
party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for
the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of
proof required in granting or denying bail can neither be the
proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil
cases. While administrative in character, the standard of
substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to
prevent the prospective extraditee from fleeing our
jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno,
proposed that a new standard which he termed "clear and
convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should
be lower than proof beyond reasonable doubt but higher
than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is
not a flight risk and will abide with all the orders and
processes of the extradition court.
In this case, there is no showing that private respondent
presented evidence to show that he is not a flight risk.
Consequently, this case should be remanded to the trial
court to determine whether private respondent may be
granted bail on the basis of "clear and convincing
evidence."
WHEREFORE, we DISMISS the petition. This case
is REMANDED to the trial court to determine whether
private respondent is entitled to bail on the basis of "clear
and convincing evidence." If not, the trial court should order
the cancellation of his bail bond and his immediate
detention; and thereafter, conduct the extradition
proceedings with dispatch.
SO ORDERED.
8) G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its
Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not
matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that
touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the
freedom to choose is that others may make different
choices – choices we would not make for ourselves,
choices we may disapprove of, even choices that may
shock or offend or anger us. However, choices are not to
be legally prohibited merely because they are different, and
the right to disagree and debate about important questions
of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine
recognition of, and respect for, diversity and difference in
opinion.
Since ancient times, society has grappled with deep
disagreements about the definitions and demands of
morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox –
philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical
solutions are preferable to ideological stalemates;
accommodation is better than intransigence; reason more
worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at
least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules
of Court, with an application for a writ of preliminary
mandatory injunction, filed by Ang Ladlad LGBT Party (Ang
Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 20092 (the First
Assailed Resolution) and December 16, 20093 (the Second
Assailed Resolution) in SPP No. 09-228 (PL) (collectively,
the Assailed Resolutions). The case has its roots in the
COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise
known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and
women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the
organization had no substantial membership base. On
August 17, 2009, Ang Ladlad again filed a Petition5 for
registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT
community is a marginalized and under-represented sector
that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of
exclusion, discrimination, and violence; that because of
negative societal attitudes, LGBTs are constrained to hide
their sexual orientation; and that Ang Ladlad complied with
the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on
Elections.6 Ang Ladlad laid out its national membership
base consisting of individual members and organizational
supporters, and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioner’s
evidence, the COMELEC (Second Division) dismissed the
Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds.
Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional,
affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same
gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious
beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for
even their women did change the natural use into that which
is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error
which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women
"ye are indeed a people transgressing beyond bounds."
(7.81) "And we rained down on them a shower (of
brimstone): Then see what was the end of those who
indulged in sin and crime!" (7:84) "He said: "O my Lord!
Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its
Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality
as indicated in the Petition’s par. 6F: ‘Consensual
partnerships or relationships by gays and lesbians who are
already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having
Sex with Men or MSMs in the Philippines were estimated
as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).
Laws are deemed incorporated in every contract, permit,
license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for
accreditation.
ANG LADLAD collides with Article 695 of the Civil Code
which defines nuisance as ‘Any act, omission,
establishment, business, condition of property, or anything
else which x x x (3) shocks, defies; or disregards decency
or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The
contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals,
good customs, public order or public policy. Art 1409 of the
Civil Code provides that ‘Contracts whose cause, object or
purpose is contrary to law, morals, good customs, public
order or public policy’ are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community,
the Revised Penal Code, as amended, penalizes ‘Immoral
doctrines, obscene publications and exhibitions and
indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and
exhibitions, and indecent shows. — The penalty of prision
mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall
be imposed upon:
1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published
with their knowledge in any form; the editors
publishing such literature; and the
owners/operators of the establishment selling the
same;
(b) Those who, in theaters, fairs,
cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or
shows, it being understood that the
 obscene literature or indecent or immoral
plays, scenes, acts or shows, whether live
or in film, which are prescribed by virtue
hereof, shall include those which: (1) glorify
criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for
violence, lust or pornography; (3) offend
any race or religion; (4) tend to abet traffic
in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, good
customs, established policies, lawful
orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films,
prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only
for advocating immoral doctrines but likewise for not being
truthful when it said that it "or any of its nominees/party-list
representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we
will be exposing our youth to an environment that does not
conform to the teachings of our faith. Lehman Strauss, a
famous bible teacher and writer in the U.S.A. said in one
article that "older practicing homosexuals are a threat to the
youth." As an agency of the government, ours too is the
State’s avowed duty under Section 13, Article II of the
Constitution to protect our youth from moral and spiritual
degradation.8
When Ang Ladlad sought reconsideration,9 three
commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene
V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer,
Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution,
stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven
its under-representation and marginalization, it cannot be
said that Ladlad’s expressed sexual orientations per se
would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the
purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations
and parties, and who lack well-defined political
constituencies but who could contribute to the formulation
and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of
Representatives.
If entry into the party-list system would depend only on the
ability of an organization to represent its constituencies,
then all representative organizations would have found
themselves into the party-list race. But that is not the
intention of the framers of the law. The party-list system is
not a tool to advocate tolerance and acceptance of
misunderstood persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of
marginalized individuals whose interests are also the
nation’s – only that their interests have not been brought to
the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will
remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine
pervades Philippine jurisprudence, courts do not recognize
lesbians, gays, homosexuals, and bisexuals (LGBT) as a
"special class" of individuals. x x x Significantly, it has also
been held that homosexuality is not a constitutionally
protected fundamental right, and that "nothing in the U.S.
Constitution discloses a comparable intent to protect or
promote the social or legal equality of homosexual
relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and
acceptance of LGBT’s is elevated, there can be no denying
that Ladlad constituencies are still males and females,
and they will remain either male or female protected by the
same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad
Christian or Muslim religious practices. Neither is there any
attempt to any particular religious group’s moral rules on
Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public
morals. They are possibly religious-based, but as a society,
the Philippines cannot ignore its more than 500 years of
Muslim and Christian upbringing, such that some moral
precepts espoused by said religions have sipped [sic] into
society and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become
part of the law of the land. Article 201 of the Revised Penal
Code imposes the penalty of prision mayor upon "Those
who shall publicly expound or proclaim doctrines openly
contrary to public morals." It penalizes "immoral doctrines,
obscene publications and exhibition and indecent shows."
"Ang Ladlad" apparently falls under these legal provisions.
This is clear from its Petition’s paragraph 6F: "Consensual
partnerships or relationships by gays and lesbians who are
already of age’ It is further indicated in par. 24 of the Petition
which waves for the record: ‘In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated as
670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x
which shocks, defies or disregards decency or morality x x
x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying
that the Court annul the Assailed Resolutions and direct the
COMELEC to grant Ang Ladlad’s application for
accreditation. Ang Ladlad also sought the issuance ex
parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would
begin printing the final ballots for the May 2010 elections by
January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor
General (OSG) to file its Comment on behalf of COMELEC
not later than 12:00 noon of January 11, 2010.11 Instead of
filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010
to Comment.12 Somewhat surprisingly, the OSG later filed
a Comment in support of petitioner’s application. 13 Thus, in
order to give COMELEC the opportunity to fully ventilate its
position, we required it to file its own comment.14 The
COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15
In the meantime, due to the urgency of the petition, we
issued a temporary restraining order on January 12, 2010,
effective immediately and continuing until further orders
from this Court, directing the COMELEC to cease and
desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human
Rights (CHR) filed a Motion to Intervene or to Appear as
Amicus Curiae, attaching thereto its Comment-in-
Intervention.17 The CHR opined that the denial of Ang
Ladlad’spetition on moral grounds violated the standards
and principles of the Constitution, the Universal Declaration
of Human Rights (UDHR), and the International Covenant
on Civil and Political Rights (ICCPR). On January 19, 2010,
we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his
Motion to Intervene18 which motion was granted on
February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar
as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the
establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to
privacy, freedom of speech and assembly, and equal
protection of laws, as well as constituted violations of the
Philippines’ international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued
that the COMELEC erred in denying petitioner’s application
for registration since there was no basis for COMELEC’s
allegations of immorality. It also opined that LGBTs have
their own special interests and concerns which should have
been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations
of petitioner’s freedom of speech, expression, and
assembly were concerned, the OSG maintained that there
had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner
does not have a concrete and genuine national political
agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time
that the LGBT sector is not among the sectors enumerated
by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its
national existence contrary to actual verification reports by
COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and
Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for
registration on the ground that the LGBT sector is neither
enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang
Bagong Bayani stands for the proposition that only those
sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled
in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element
is not whether a sector is specifically enumerated, but
whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had
nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification
by its field personnel, it was shown that "save for a few
isolated places in the country, petitioner does not exist in
almost all provinces in the country."21
This argument that "petitioner made untruthful statements
in its petition when it alleged its national existence" is a new
one; previously, the COMELEC claimed that petitioner was
"not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or
failed to comply with laws, rules, or regulations relating to
the elections." Nowhere was this ground for denial of
petitioner’s accreditation mentioned or even alluded to in
the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to
the issuance of the First Assailed Resolution. At best, this
is irregular procedure; at worst, a belated afterthought, a
change in respondent’s theory, and a serious violation of
petitioner’s right to procedural due process.
Nonetheless, we find that there has been no
misrepresentation. A cursory perusal of Ang Ladlad’s initial
petition shows that it never claimed to exist in each province
of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and
members around the country, and 4,044 members in its
electronic discussion group.22 Ang Ladlad also represented
itself to be "a national LGBT umbrella organization with
affiliates around the Philippines composed of the following
LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro
Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association
(GABAY)
§ Gay and Lesbian Activists Network for Gender
Equality (GALANG) – Metro Manila
§ Gay Men’s Support Group (GMSG) – Metro
Manila
§ Gay United for Peace and Solidarity (GUPS) –
Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro
Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro
Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines
(STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga
City23
Since the COMELEC only searched for the names ANG
LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these
regions. In fact, if COMELEC’s findings are to be believed,
petitioner does not even exist in Quezon City, which is
registered as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has
sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from
COMELEC’s moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent
ever found/ruled that Ang Ladlad is not qualified to register
as a party-list organization under any of the requisites under
RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlad’s morality,
or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s
Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o
law shall be made respecting an establishment of religion,
or prohibiting the free exercise thereof." At bottom, what our
non-establishment clause calls for is "government neutrality
in religious matters."24 Clearly, "governmental reliance on
religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the
non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the
Assailed Resolutions should depend, instead, on whether
the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine.
Otherwise stated, government must act for secular
purposes and in ways that have primarily secular effects.
As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in
public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable
in secular terms." Otherwise, if government relies upon
religious beliefs in formulating public policies and morals,
the resulting policies and morals would require conformity
to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious
belief, i.e., to a "compelled religion," anathema to religious
freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that
belief and thereby also tacitly disapprove contrary religious
or non-religious views that would not support the policy. As
a result, government will not provide full religious freedom
for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription
of immorality as expressed in criminal law like concubinage,
must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the
existence and progress of human society" and not because
the conduct is proscribed by the beliefs of one religion or
the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those
engaged in public deliberations over what actions would be
considered a moral disapprobation punishable by law. After
all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate
the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a
law could be religious or Kantian or Aquinian or utilitarian in
its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass
scrutiny of the religion clauses. x x x Recognizing the
religious nature of the Filipinos and the elevating influence
of religion in society, however, the Philippine constitution's
religion clauses prescribe not a strict but a benevolent
neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but
at the same time strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits.
Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it
does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition
for Registration
Respondent suggests that although the moral
condemnation of homosexuality and homosexual conduct
may be religion-based, it has long been transplanted into
generally accepted public morals. The COMELEC argues:
Petitioner’s accreditation was denied not necessarily
because their group consists of LGBTs but because of the
danger it poses to the people especially the youth. Once it
is recognized by the government, a sector which believes
that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring
down the standard of morals we cherish in our civilized
society. Any society without a set of moral precepts is in
danger of losing its own existence.28
We are not blind to the fact that, through the years,
homosexual conduct, and perhaps homosexuals
themselves, have borne the brunt of societal disapproval. It
is not difficult to imagine the reasons behind this censure –
religious beliefs, convictions about the preservation of
marriage, family, and procreation, even dislike or distrust of
homosexuals themselves and their perceived lifestyle.
Nonetheless, we recall that the Philippines has not seen fit
to criminalize homosexual conduct. Evidently, therefore,
these "generally accepted public morals" have not been
convincingly transplanted into the realm of law. 29
The Assailed Resolutions have not identified any specific
overt immoral act performed by Ang Ladlad. Even the OSG
agrees that "there should have been a finding by the
COMELEC that the group’s members have committed or
are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the
same gender, of a different gender, or more than one
gender, but mere attraction does not translate to immoral
acts. There is a great divide between thought and action.
Reduction ad absurdum. If immoral thoughts could be
penalized, COMELEC would have its hands full of
disqualification cases against both the "straights" and the
gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are
sought to be prevented, or why special protection is
required for the youth. Neither has the COMELEC
condescended to justify its position that petitioner’s
admission into the party-list system would be so harmful as
to irreparably damage the moral fabric of society. We, of
course, do not suggest that the state is wholly without
authority to regulate matters concerning morality, sexuality,
and sexual relations, and we recognize that the government
will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest
of intentions, situate morality on one end of an argument or
another, without bothering to go through the rigors of legal
reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of
morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported
violations of our penal and civil laws flimsy, at best;
disingenuous, at worst. Article 694 of the Civil Code defines
a nuisance as "any act, omission, establishment, condition
of property, or anything else which shocks, defies, or
disregards decency or morality," the remedies for which are
a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond
reasonable doubt to support a criminal conviction. It hardly
needs to be emphasized that mere allegation of violation of
laws is not proof, and a mere blanket invocation of public
morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or
culpability.
As such, we hold that moral disapproval, without more, is
not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The
denial of Ang Ladlad’s registration on purely moral grounds
amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial
public interest. Respondent’s blanket justifications give rise
to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any
particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our
Constitution, which provides "nor shall any person be
denied equal protection of the laws," courts have never
interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the
same treatment of similar persons."33 The equal protection
clause guarantees that no person or class of persons shall
be deprived of the same protection of laws which is enjoyed
by other persons or other classes in the same place and in
like circumstances.34
Recent jurisprudence has affirmed that if a law neither
burdens a fundamental right nor targets a suspect class, we
will uphold the classification as long as it bears a rational
relationship to some legitimate government end.35 In
Central Bank Employees Association, Inc. v. Banko Sentral
ng Pilipinas,36 we declared that "[i]n our jurisdiction, the
standard of analysis of equal protection challenges x x x
have followed the ‘rational basis’ test, coupled with a
deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine
population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to
disqualify the petitioner. Unfortunately for the respondent,
the Philippine electorate has expressed no such belief. No
law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed,
even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here –
that is, moral disapproval of an unpopular minority – is not
a legitimate state interest that is sufficient to satisfy rational
basis review under the equal protection clause. The
COMELEC’s differentiation, and its unsubstantiated claim
that Ang Ladlad cannot contribute to the formulation of
legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike
for a disfavored group.
From the standpoint of the political process, the lesbian,
gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as
other political parties similarly situated. State intrusion in
this case is equally burdensome. Hence, laws of general
application should apply with equal force to LGBTs, and
they deserve to participate in the party-list system on the
same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the
party-list system is concerned does not imply that any other
law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly
fail. We disagree with the OSG’s position that homosexuals
are a class in themselves for the purposes of the equal
protection clause.38 We are not prepared to single out
homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make
such a ruling today. Petitioner itself has merely demanded
that it be recognized under the same basis as all other
groups similarly situated, and that the COMELEC made "an
unwarranted and impermissible classification not justified
by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to
promote its agenda and attempt to persuade society of the
validity of its position through normal democratic means.39 It
is in the public square that deeply held convictions and
differing opinions should be distilled and deliberated upon.
As we held in Estrada v. Escritor:40
In a democracy, this common agreement on political and
moral ideas is distilled in the public square. Where citizens
are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public
square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including
opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this
representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide.
Majority rule is a necessary principle in this democratic
governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act
of adopting and accepting a constitution and the limits it
specifies – including protection of religious freedom "not
only for a minority, however small – not only for a majority,
however large – but for each of us" – the majority imposes
upon itself a self-denying ordinance. It promises not to do
what it otherwise could do: to ride roughshod over the
dissenting minorities.
Freedom of expression constitutes one of the essential
foundations of a democratic society, and this freedom
applies not only to those that are favorably received but also
to those that offend, shock, or disturb. Any restriction
imposed in this sphere must be proportionate to the
legitimate aim pursued. Absent any compelling state
interest, it is not for the COMELEC or this Court to impose
its views on the populace. Otherwise stated, the COMELEC
is certainly not free to interfere with speech for no better
reason than promoting an approved message or
discouraging a disfavored one.
This position gains even more force if one considers that
homosexual conduct is not illegal in this country. It follows
that both expressions concerning one’s homosexuality and
the activity of forming a political association that supports
LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule
that even overwhelming public perception that homosexual
conduct violates public morality does not justify
criminalizing same-sex conduct.41 European and United
Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing
general privacy and equal protection provisions in foreign
and international texts.42 To the extent that there is much to
learn from other jurisdictions that have reflected on the
issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally
binding on Philippine courts, may nevertheless have
persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United
States courts have ruled that existing free speech doctrines
protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of
opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an
unpopular viewpoint."43
With respect to freedom of association for the advancement
of ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state
if it uses legal and democratic means and the changes it
proposes are consistent with democratic principles. The
ECHR has emphasized that political ideas that challenge
the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association,
even if such ideas may seem shocking or unacceptable to
the authorities or the majority of the population.44 A political
group should not be hindered solely because it seeks to
publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.45 Only
if a political party incites violence or puts forward policies
that are incompatible with democracy does it fall outside the
protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe
that homosexual conduct is distasteful, offensive, or even
defiant. They are entitled to hold and express that view. On
the other hand, LGBTs and their supporters, in all likelihood,
believe with equal fervor that relationships between
individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold
and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or
moral views of one part of the community to exclude from
consideration the values of other members of the
community.
Of course, none of this suggests the impending arrival of a
golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and
the more complex moral sentiments of Filipinos. We do not
suggest that public opinion, even at its most liberal, reflect
a clear-cut strong consensus favorable to gay rights claims
and we neither attempt nor expect to affect individual
perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior
restraint nor subsequent punishment imposed on Ang
Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no
restriction on their freedom of expression or association.
The OSG argues that:
There was no utterance restricted, no publication censored,
or any assembly denied. [COMELEC] simply exercised its
authority to review and verify the qualifications of petitioner
as a sectoral party applying to participate in the party-list
system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive
the members of the petitioner to freely take part in the
conduct of elections. Their right to vote will not be hampered
by said denial. In fact, the right to vote is a constitutionally-
guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election,
petitioner contends that the denial of Ang Ladlad’s petition
has the clear and immediate effect of limiting, if not
outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the
party list elections.
This argument is puerile. The holding of a public office is
not a right but a privilege subject to limitations imposed by
law. x x x47
The OSG fails to recall that petitioner has, in fact,
established its qualifications to participate in the party-list
system, and – as advanced by the OSG itself – the moral
objection offered by the COMELEC was not a limitation
imposed by law. To the extent, therefore, that the petitioner
has been precluded, because of COMELEC’s action, from
publicly expressing its views as a political party and
participating on an equal basis in the political process with
other equally-qualified party-list candidates, we find that
there has, indeed, been a transgression of petitioner’s
fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve
geometrically in scope and promise, international human
rights law, in particular, has grown dynamically in its attempt
to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural
and governmental support, international human rights
norms are particularly significant, and should be effectively
enforced in domestic legal systems so that such norms may
become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In
particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of
the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without
any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
In this context, the principle of non-discrimination requires
that laws of general application relating to elections be
applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article
26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to "sex" in Article 26 should be
construed to include "sexual orientation."48Additionally, a
variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be
prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of
his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic
elections which shall be by universal and equal
suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the
electors;
(c) To have access, on general terms of equality, to
public service in his country.
As stated by the CHR in its Comment-in-Intervention, the
scope of the right to electoral participation is elaborated by
the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as
follows:
1. Article 25 of the Covenant recognizes and protects the
right of every citizen to take part in the conduct of public
affairs, the right to vote and to be elected and the right to
have access to public service. Whatever form of constitution
or government is in force, the Covenant requires States to
adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective
opportunity to enjoy the rights it protects. Article 25 lies at
the core of democratic government based on the consent of
the people and in conformity with the principles of the
Covenant.
xxxx
15. The effective implementation of the right and the
opportunity to stand for elective office ensures that persons
entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable
or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No
person should suffer discrimination or disadvantage of any WHEREFORE, the Petition is hereby GRANTED. The
kind because of that person's candidacy. States parties Resolutions of the Commission on Elections dated
should indicate and explain the legislative provisions which November 11, 2009 and December 16, 2009 in SPP No.
exclude any group or category of persons from elective 09-228 (PL) are hereby SET ASIDE. The Commission on
office.50 Elections is directed to GRANT petitioner’s application for
party-list accreditation.
We stress, however, that although this Court stands willing
to assume the responsibility of giving effect to the SO ORDERED.
Philippines’ international law obligations, the blanket
invocation of international law is not the panacea for all
social ills. We refer now to the petitioner’s invocation of the
Yogyakarta Principles (the Application of International
Human Rights Law In Relation to Sexual Orientation and
Gender Identity),51 which petitioner declares to reflect
binding principles of international law.

At this time, we are not prepared to declare that

these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and
obligations outlined in said Principles which are not
reflective of the current state of international law, and do not
find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the
International Court of Justice.52 Petitioner has not
undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true
status.

We also hasten to add that not everything that society – or

a certain segment of society – wants or demands is
automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will.
It is unfortunate that much of what passes for human rights
today is a much broader context of needs that identifies
many social desires as rights in order to further claims that
international law obliges states to sanction these
innovations. This has the effect of diluting real human rights,
and is a result of the notion that if "wants" are couched in
"rights" language, then they are no longer
controversial.1avvphi1

Using even the most liberal of lenses, these Yogyakarta

Principles, consisting of a declaration formulated by various
international law professors, are – at best – de lege ferenda
– and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international
law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote
international cooperation, harmony, and respect for human
rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio
juris.53

As a final note, we cannot help but observe that the social

issues presented by this case are emotionally charged,
societal attitudes are in flux, even the psychiatric and
religious communities are divided in opinion. This Court’s
role is not to impose its own view of acceptable behavior.
Rather, it is to apply the Constitution and laws as best as it
can, uninfluenced by public opinion, and confident in the
knowledge that our democracy is resilient enough to
withstand vigorous debate.