Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
 1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights are
to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
 and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 159747 April 13, 2004

GREGORIO B. HONASAN II, petitioner,

vs.
THE PANEL OF INVESTIGATING PROSECUTORS OF THE DEPARTMENT OF JUSTICE (LEO
DACERA, SUSAN F. DACANAY, EDNA A. VALENZUELA AND SEBASTIAN F. CAPONONG,
JR.), CIDG-PNP- P/DIRECTOR EDUARDO MATILLANO, and HON. OMBUDSMAN SIMEON V.
MARCELO, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

On August 4, 2003, an affidavit-complaint was filed with the Department of Justice (DOJ) by
respondent CIDG-PNP/P Director Eduardo Matillano. It reads in part:

2. After a thorough investigation, I found that a crime of coup d'etat was indeed committed by
military personnel who occupied Oakwood on the 27th day of July 2003 and Senator Gregorio
"Gringo"Honasan, II …

3. …

4. The said crime was committed as follows:

4.1 On June 4, 2003, at on or about 11 p.m., in a house located in San Juan, Metro Manila, a
meeting was held and presided by Senator Honasan. Attached as Annex "B" is the
affidavit of Perfecto Ragil and made an integral part of this complaint.

4.8 In the early morning of July 27, 2003, Capt. Gerardo Gambala, for and in behalf
of the military rebels occupying Oakwood, made a public statement aired on nation
television, stating their withdrawal of support to the chain of command of the AFP
and the Government of President Gloria Macapagal Arroyo and they are willing to
 risk their lives in order to achieve the National Recovery Agenda of Sen. Honasan,
which they believe is the only program that would solve the ills of society. . . .
(Emphasis supplied).

The Sworn Statement of AFP Major Perfecto Ragil referred to by PNP/P Director Matillano is quoted
verbatim, to wit:

1. That I am a member of the Communication –Electronics and Information Systems

Services, Armed Forces of the Philippines with the rank of Major;

2. That I met a certain Captain Gary Alejano of the Presidential Security Guard (PSG) during
our Very Important Person (VIP) Protection Course sometime in last week of March 2003;

3. That sometime in May 2003, Captain Alejano gave me a copy of the pamphlet of the
National Recovery Program (NRP) and told me that: "Kailangan ng Bansa ng taong kagaya
mo na walang bahid ng corruption kaya basahin mo ito (referring to NRP) pamphlet. I took
the pamphlet but never had the time to read it;

4. That sometime in the afternoon of June 4, 2003, Captain Alejano invited me to join him in
a meeting where the NRP would be discussed and that there would be a special guest;

5. That Capt. Alejano and I arrived at the meeting at past 9 o'clock in the evening of June 4,
2003 in a house located somewhere in San Juan, Metro Manila;

6. That upon arrival we were given a document consisting of about 3-4 pages containing
discussion of issues and concerns within the framework of NRP and we were likewise served
with dinner;

7. That while we were still having dinner at about past 11 o'clock in the evening, Sen.
Gregorio "Gringo" Honasan arrived together with another fellow who was later introduced as
Capt. Turingan;

8. That after Sen. Honasan had taken his dinner, the meeting proper started presided by
Sen. Honasan;

9. That Sen. Honasan discussed the NRP, the graft and corruption in the government
including the military institution, the judiciary, the executive branch and the like;

10. That the discussion concluded that we must use force, violence and armed struggle to
achieve the vision of NRP. At this point, I raised the argument that it is my belief that reforms
will be achieved through the democratic processes and not thru force and violence and/or
armed struggle. Sen. Honasan countered that "we will never achieve reforms through the
democratic processes because the people who are in power will not give up their positions
as they have their vested interests to protect." After a few more exchanges of views, Sen.
Honasan appeared irritated and asked me directly three (3) times: "In ka ba o out?" I then
asked whether all those present numbering 30 people, more or less, are really committed,
Sen. Honasan replied: "Kung kaya nating pumatay sa ating mga kalaban, kaya din nating
pumatay sa mga kasamahang magtataksil." I decided not to pursue further questions;

11. That in the course of the meeting, he presented the plan of action to achieve the goals of
NRP, i.e., overthrow of the government under the present leadership thru armed revolution
 and after which, a junta will be constituted and that junta will run the new government. He
further said that some of us will resign from the military service and occupy civilian positions
in the new government. He also said that there is urgency that we implement this plan and
that we would be notified of the next activities.

12. That after the discussion and his presentation, he explained the rites that we were to
undergo-some sort of "blood compact". He read a prayer that sounded more like a pledge
and we all recited it with raised arms and clenched fists. He then took a knife and
demonstrated how to make a cut on the left upper inner arm until it bleeds. The cut was in
form of the letter "I" in the old alphabet but was done in a way that it actually looked like letter
"H". Then, he pressed his right thumb against the blood and pressed the thumb on the lower
middle portion of the copy of the Prayer. He then covered his thumb mark in blood with tape.
He then pressed the cut on his left arm against the NRP flag and left mark of letter "I" on it.
Everybody else followed;

13. That when my turn came, I slightly made a cut on my upper inner arm and pricked a
portion of it to let it bleed and I followed what Senator HONASAN did;

14. That I did not like to participate in the rites but I had the fear for my life with what Senator
HONASAN said that "…kaya nating pumatay ng kasamahan";

15. That after the rites, the meeting was adjourned and we left the place;

16. That I avoided Captain Alejano after that meeting but I was extra cautious that he would
not notice it for fear of my life due to the threat made by Senator HONASAN during the
meeting on June 4, 2003 and the information relayed to me by Captain Alejano that their
group had already deeply established their network inside the intelligence community;

17. That sometime in the first week of July 2003, Captain Alejano came to see me to return
the rifle that he borrowed and told me that when the group arrives at the Malacañang
Compound for "D-DAY", my task is to switch off the telephone PABX that serves the
Malacañang complex. I told him that I could not do it. No further conversation ensued and he
left;

18. That on Sunday, July 27, 2003, while watching the television, I saw flashed on the screen
Lieutenant Antonio Trillanes, Captain Gerardo Gambala, Captain Alejano and some others
who were present during the June 4th meeting that I attended, having a press conference
about their occupation of the Oakwood Hotel. I also saw that the letter "I" on the arm bands
and the banner is the same letter "I" in the banner which was displayed and on which we
pressed our wound to leave the imprint of the letter "I";

19. That this Affidavit is being executed in order to attest the veracity of the foregoing and in
order to charge SENATOR GREGORIO "GRINGO" HONASAN, Capt. FELIX TURINGAN,
Capt. GARY ALEJANO, Lt. ANTONIO TRILLANES, Capt. GERARDO GAMBALA and others
for violation of Article 134-A of the Revised Penal Code for the offense of "coup d'etat".
(Emphasis supplied)

The affidavit-complaint is docketed as I.S. No. 2003-1120 and the Panel of Investigating Prosecutors
of the Department of Justice (DOJ Panel for brevity) sent a subpoena to petitioner for preliminary
investigation.
On August 27, 2003, petitioner, together with his counsel, appeared at the DOJ. He filed a Motion for
Clarification questioning DOJ's jurisdiction over the case, asserting that since the imputed acts were
committed in relation to his public office, it is the Office of the Ombudsman, not the DOJ, that has the
jurisdiction to conduct the corresponding preliminary investigation; that should the charge be filed in
court, it is the Sandiganbayan, not the regular courts, that can legally take cognizance of the case
considering that he belongs to the group of public officials with Salary Grade 31; and praying that the
proceedings be suspended until final resolution of his motion.

Respondent Matillano submitted his comment/opposition thereto and petitioner filed a reply.

On September 10, 2003, the DOJ Panel issued an Order, to wit:

On August 27, 2003, Senator Gregorio B. Honasan II filed through counsel a "Motion to
Clarify Jurisdiction". On September 1, 2003, complainant filed a Comment/Opposition to the
said motion.

The motion and comment/opposition are hereby duly noted and shall be passed upon in the
resolution of this case.

In the meantime, in view of the submission by complainant of additional affidavits/evidence

and to afford respondents ample opportunity to controvert the same, respondents, thru
counsel are hereby directed to file their respective counter-affidavits and controverting
evidence on or before September 23, 2003.1

Hence, Senator Gregorio B. Honasan II filed the herein petition for certiorari under Rule 65 of the
Rules of Court against the DOJ Panel and its members, CIDG-PNP-P/Director Eduardo Matillano
and Ombudsman Simeon V. Marcelo, attributing grave abuse of discretion on the part of the DOJ
Panel in issuing the aforequoted Order of September 10, 2003 on the ground that the DOJ has no
jurisdiction to conduct the preliminary investigation.

Respondent Ombudsman, the Office of Solicitor General in representation of respondents DOJ

Panel, and Director Matillano submitted their respective comments.

The Court heard the parties in oral arguments on the following issues:

1) Whether respondent Department of Justice Panel of Investigators has jurisdiction to

conduct preliminary investigation over the charge of coup d'etat against petitioner;

2) Whether Ombudsman-DOJ Circular No. 95-001 violates the Constitution and Republic Act
No. 6770 or Ombudsman Act of 1989; and

3) Whether respondent DOJ Panel of Investigators committed grave abuse of discretion in

deferring the resolution of the petitioner's motion to clarify jurisdiction considering the claim
of the petitioner that the DOJ Panel has no jurisdiction to conduct preliminary investigation.

After the oral arguments, the parties submitted their respective memoranda. The arguments of
petitioner are:

1. The Office of the Ombudsman has jurisdiction to conduct the preliminary investigation
over all public officials, including petitioner.
 2. Respondent DOJ Panel is neither authorized nor deputized under OMB-DOJ Joint Circular
No. 95-001 to conduct the preliminary investigation involving Honasan.

3. Even if deputized, the respondent DOJ Panel is still without authority since OMB-DOJ
Joint Circular No. 95-001 is ultra vires for being violative of the Constitution, beyond the
powers granted to the Ombudsman by R.A. 6770 and inoperative due to lack of publication,
hence null and void.

4. Since petitioner is charged with coup de 'etat in relation to his office, it is the Office of the
Ombudsman which has the jurisdiction to conduct the preliminary investigation.

5. The respondent DOJ Panel gravely erred in deferring the resolution of petitioner's Motion
to Clarify Jurisdiction since the issue involved therein is determinative of the validity of the
preliminary investigation.

6. Respondent DOJ Panel gravely erred when it resolved petitioner's Motion in the guise of
directing him to submit Counter-Affidavit and yet refused and/or failed to perform its duties to
resolve petitioner's Motion stating its legal and factual bases.

The arguments of respondent DOJ Panel are:

1. The DOJ has jurisdiction to conduct the preliminary investigation on petitioner pursuant to
Section 3, Chapter I, Title III, Book IV of the Revised Administrative Code of 1987 in relation
to P.D. No. 1275, as amended by P.D. No. 1513.

2. Petitioner is charged with a crime that is not directly nor intimately related to his public
office as a Senator. The factual allegations in the complaint and the supporting affidavits are
bereft of the requisite nexus between petitioner's office and the acts complained of.

3. The challenge against the constitutionality of the OMB-DOJ Joint Circular, as a ground to
question the jurisdiction of the DOJ over the complaint below, is misplaced. The jurisdiction
of the DOJ is a statutory grant under the Revised Administrative Code. It is not derived from
any provision of the joint circular which embodies the guidelines governing the authority of
both the DOJ and the Office of the Ombudsman to conduct preliminary investigation on
offenses charged in relation to public office.

4. Instead of filing his counter-affidavit, petitioner opted to file a motion to clarify jurisdiction
which, for all intents and purposes, is actually a motion to dismiss that is a prohibited
pleading under Section 3, Rule 112 of the Revised Rules of Criminal Procedure. The DOJ
Panel is not required to act or even recognize it since a preliminary investigation is required
solely for the purpose of determining whether there is a sufficient ground to engender a well
founded belief that a crime has been committed and the respondent is probably guilty thereof
and should be held for trial. The DOJ panel did not outrightly reject the motion of petitioner
but ruled to pass upon the same in the determination of the probable cause; thus, it has not
violated any law or rule or any norm of discretion.

The arguments of respondent Ombudsman are:

1. The DOJ Panel has full authority and jurisdiction to conduct preliminary investigation over
the petitioner for the reason that the crime of coup d'etat under Article No. 134-A of the
Revised Penal Code (RPC) may fall under the jurisdiction of the Sandiganbayan only if the
 same is committed "in relation to office" of petitioner, pursuant to Section 4, P.D. No. 1606,
as amended by R.A. No. 7975 and R.A. No. 8249.

2. Petitioner's premise that the DOJ Panel derives its authority to conduct preliminary
investigation over cases involving public officers solely from the OMB-DOJ Joint Circular No.
95-001 is misplaced because the DOJ's concurrent authority with the OMB to conduct
preliminary investigation of cases involving public officials has been recognized in Sanchez
vs. Demetriou (227 SCRA 627 [1993]) and incorporated in Section 4, Rule 112 of the
Revised Rules of Criminal Procedure.

3. Petitioner's assertion that the Joint Circular is ultra vires and the DOJ cannot be deputized
by the Ombudsman en masse but must be given in reference to specific cases has no
factual or legal basis. There is no rule or law which requires the Ombudsman to write out
individualized authorities to deputize prosecutors on a per case basis. The power of the
Ombudsman to deputize DOJ prosecutors proceeds from the Constitutional grant of power to
request assistance from any government agency necessary to discharge its functions, as
well as from the statutory authority to so deputize said DOJ prosecutors under Sec. 31 of RA
6770.

4. The Joint Circular which is an internal arrangement between the DOJ and the Office of the
Ombudsman need not be published since it neither contains a penal provision nor does it
prescribe a mandatory act or prohibit any under pain or penalty. It does not regulate the
conduct of persons or the public, in general.

The Court finds the petition without merit.

The authority of respondent DOJ Panel is based not on the assailed OMB-DOJ Circular No. 95-001
but on the provisions of the 1987 Administrative Code under Chapter I, Title III, Book IV, governing
the DOJ, which provides:

Sec. 1. Declaration of policy - It is the declared policy of the State to provide the government
with a principal law agency which shall be both its legal counsel and prosecution arm;
administer the criminal justice system in accordance with the accepted processes thereof
consisting in the investigation of the crimes, prosecution of offenders and administration of
the correctional system; …

Sec. 3. Powers and Functions - To accomplish its mandate, the Department shall have the
following powers and functions:

(2) Investigate the commission of crimes, prosecute offenders and administer the
probation and correction system; (Emphasis supplied)

and Section 1 of P.D. 1275, effective April 11, 1978, to wit:

SECTION 1. Creation of the National Prosecution Service; Supervision and Control of the
Secretary of Justice. – There is hereby created and established a National Prosecution
Service under the supervision and control of the Secretary of Justice, to be composed of the
Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State
Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided,
 which shall be primarily responsible for the investigation and prosecution of all cases
involving violations of penal laws. (Emphasis supplied)

Petitioner claims that it is the Ombudsman, not the DOJ, that has the jurisdiction to conduct the
preliminary investigation under paragraph (1), Section 13, Article XI of the 1987 Constitution, which
confers upon the Office of the Ombudsman the power to investigate on its own, or on complaint by
any person, any act or omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient. Petitioner rationalizes that the 1987
Administrative Code and the Ombudsman Act of 1989 cannot prevail over the Constitution, pursuant
to Article 7 of the Civil Code, which provides:

Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.

Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution.

and Mabanag vs. Lopez Vito.2

The Court is not convinced. Paragraph (1) of Section 13, Article XI of the Constitution, viz:

SEC. 13. The Office of the Ombudsman shall have the following powers, functions, and
duties:

1. Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.

does not exclude other government agencies tasked by law to investigate and prosecute cases
involving public officials. If it were the intention of the framers of the 1987 Constitution, they would
have expressly declared the exclusive conferment of the power to the Ombudsman. Instead,
paragraph (8) of the same Section 13 of the Constitution provides:

(8) Promulgate its rules of procedure and exercise such other powers or perform such
functions or duties as may be provided by law.

Accordingly, Congress enacted R.A. 6770, otherwise known as "The Ombudsman Act of 1989."
Section 15 thereof provides:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the
following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission
of any public officer or employee, office or agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by
the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over,
at any stage, from any investigatory agency of the government, the investigation of
such cases.
 …. (Emphasis supplied)

Pursuant to the authority given to the Ombudsman by the Constitution and the Ombudsman Act of
1989 to lay down its own rules and procedure, the Office of the Ombudsman promulgated
Administrative Order No. 8, dated November 8, 1990, entitled, Clarifying and Modifying Certain
Rules of Procedure of the Ombudsman, to wit:

A complaint filed in or taken cognizance of by the Office of the Ombudsman charging any
public officer or employee including those in government-owned or controlled corporations,
with an act or omission alleged to be illegal, unjust, improper or inefficient is an Ombudsman
case. Such a complaint may be the subject of criminal or administrative proceedings, or both.

For purposes of investigation and prosecution, Ombudsman cases involving criminal

offenses may be subdivided into two classes, to wit: (1) those cognizable by the
Sandiganbayan, and (2) those falling under the jurisdiction of the regular courts. The
difference between the two, aside from the category of the courts wherein they are
filed, is on the authority to investigate as distinguished from the authority to
prosecute, such cases.

The power to investigate or conduct a preliminary investigation on any Ombudsman

case may be exercised by an investigator or prosecutor of the Office of the
Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in
their regular capacities or as deputized Ombudsman prosecutors.

The prosecution of cases cognizable by the Sandiganbayan shall be under the direct
exclusive control and supervision of the Office of the Ombudsman. In cases
cognizable by the regular Courts, the control and supervision by the Office of the
Ombudsman is only in Ombudsman cases in the sense defined above. The law
recognizes a concurrence of jurisdiction between the Office of the Ombudsman and
other investigative agencies of the government in the prosecution of cases cognizable
by regular courts. (Emphasis supplied)

It is noteworthy that as early as 1990, the Ombudsman had properly differentiated the authority to
investigate cases from the authority to prosecute cases. It is on this note that the Court will first dwell
on the nature or extent of the authority of the Ombudsman to investigate cases. Whence, focus is
directed to the second sentence of paragraph (1), Section 15 of the Ombudsman Act which
specifically provides that the Ombudsman has primary jurisdiction over cases cognizable by the
Sandiganbayan, and, in the exercise of this primary jurisdiction, it may take over, at any stage, from
any investigating agency of the government, the investigation of such cases.

That the power of the Ombudsman to investigate offenses involving public officers or employees is
not exclusive but is concurrent with other similarly authorized agencies of the government such as
the provincial, city and state prosecutors has long been settled in several decisions of the Court.

In Cojuangco, Jr. vs. Presidential Commission on Good Government, decided in 1990, the Court
expressly declared:

A reading of the foregoing provision of the Constitution does not show that the power of
investigation including preliminary investigation vested on the Ombudsman is exclusive.3

Interpreting the primary jurisdiction of the Ombudsman under Section 15 (1) of the Ombudsman Act,
the Court held in said case:
 Under Section 15 (1) of Republic Act No. 6770 aforecited, the Ombudsman has primary
jurisdiction over cases cognizable by the Sandiganbayan so that it may take over at any
stage from any investigatory agency of the government, the investigation of such cases. The
authority of the Ombudsman to investigate offenses involving public officers or
employees is not exclusive but is concurrent with other similarly authorized agencies
of the government. Such investigatory agencies referred to include the PCGG and the
provincial and city prosecutors and their assistants, the state prosecutors and the
judges of the municipal trial courts and municipal circuit trial court.

In other words the provision of the law has opened up the authority to conduct
preliminary investigation of offenses cognizable by the Sandiganbayan to all
investigatory agencies of the government duly authorized to conduct a preliminary
investigation under Section 2, Rule 112 of the 1985 Rules of Criminal Procedure with
the only qualification that the Ombudsman may take over at any stage of such
investigation in the exercise of his primary jurisdiction.4 (Emphasis supplied)

A little over a month later, the Court, in Deloso vs. Domingo,5 pronounced that the Ombudsman,
under the authority of Section 13 (1) of the 1987 Constitution, has jurisdiction to investigate any
crime committed by a public official, elucidating thus:

As protector of the people, the office of the Ombudsman has the power, function and duty to
"act promptly on complaints filed in any form or manner against public officials" (Sec. 12) and
to "investigate x x x any act or omission of any public official x x x when such act or omission
appears to be illegal, unjust, improper or inefficient." (Sec. 13[1].) The Ombudsman is also
empowered to "direct the officer concerned," in this case the Special Prosecutor, "to take
appropriate action against a public official x x x and to recommend his prosecution" (Sec.
13[3]).

The clause "any [illegal] act or omission of any public official" is broad enough to embrace
any crime committed by a public official. The law does not qualify the nature of the illegal act
or omission of the public official or employee that the Ombudsman may investigate. It does
not require that the act or omission be related to or be connected with or arise from, the
performance of official duty. Since the law does not distinguish, neither should we.

The reason for the creation of the Ombudsman in the 1987 Constitution and for the grant to it
of broad investigative authority, is to insulate said office from the long tentacles of officialdom
that are able to penetrate judges' and fiscals' offices, and others involved in the prosecution
of erring public officials, and through the exertion of official pressure and influence, quash,
delay, or dismiss investigations into malfeasances and misfeasances committed by public
officers. It was deemed necessary, therefore, to create a special office to
investigate all criminal complaints against public officers regardless of whether or not the
acts or omissions complained of are related to or arise from the performance of the duties of
their office. The Ombudsman Act makes perfectly clear that the jurisdiction of the
Ombudsman encompasses "all kinds of malfeasance, misfeasance, and non-feasance that
have been committed by any officer or employee as mentioned in Section 13 hereof, during
his tenure of office" (Sec. 16, R.A. 6770).

.........

Indeed, the labors of the constitutional commission that created the Ombudsman as a
special body to investigate erring public officials would be wasted if its jurisdiction were
confined to the investigation of minor and less grave offenses arising from, or related to, the
 duties of public office, but would exclude those grave and terrible crimes that spring from
abuses of official powers and prerogatives, for it is the investigation of the latter where the
need for an independent, fearless, and honest investigative body, like the Ombudsman, is
greatest.6

At first blush, there appears to be conflicting views in the rulings of the Court in the Cojuangco,
Jr. case and the Deloso case. However, the contrariety is more apparent than real. In subsequent
cases, the Court elucidated on the nature of the powers of the Ombudsman to investigate.

In 1993, the Court held in Sanchez vs. Demetriou,7 that while it may be true that the Ombudsman has
jurisdiction to investigate and prosecute any illegal act or omission of any public official, the authority
of the Ombudsman to investigate is merely a primary and not an exclusive authority, thus:

The Ombudsman is indeed empowered under Section 15, paragraph (1) of RA 6770 to
investigate and prosecute any illegal act or omission of any public official. However as we
held only two years ago in the case of Aguinaldo vs. Domagas,8 this authority "is not an
exclusive authority but rather a shared or concurrent authority in respect of the offense
charged."

Petitioners finally assert that the information and amended information filed in this case
needed the approval of the Ombudsman. It is not disputed that the information and amended
information here did not have the approval of the Ombudsman. However, we do not believe
that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA 545 (1990), the
Court held that the Ombudsman has authority to investigate charges of illegal acts or
omissions on the part of any public official, i.e., any crime imputed to a public official. It
must, however, be pointed out that the authority of the Ombudsman to investigate
"any [illegal] act or omission of any public official" (191 SCRA 550) is not an exclusive
authority but rather a shared or concurrent authority in respect of the offense
charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the
Ombudsman in the present case does not have any adverse legal consequence upon the
authority of the panel of prosecutors to file and prosecute the information or amended
information.

In fact, other investigatory agencies of the government such as the Department of

Justice in connection with the charge of sedition, and the Presidential Commission on
Good Government, in ill gotten wealth cases, may conduct the
investigation.9 (Emphasis supplied)

In Natividad vs. Felix,10 a 1994 case, where the petitioner municipal mayor contended that it is the
Ombudsman and not the provincial fiscal who has the authority to conduct a preliminary
investigation over his case for alleged Murder, the Court held:

The Deloso case has already been re-examined in two cases, namely Aguinaldo vs.
Domagas and Sanchez vs. Demetriou. However, by way of amplification, we feel the need
for tracing the history of the legislation relative to the jurisdiction of Sandiganbayan since the
Ombudsman's primary jurisdiction is dependent on the cases cognizable by the former.

In the process, we shall observe how the policy of the law, with reference to the subject
matter, has been in a state of flux.

These laws, in chronological order, are the following: (a) Pres. Decree No. 1486, -- the first
law on the Sandiganbayan; (b) Pres. Decree No. 1606 which expressly repealed Pres.
Decree No. 1486; (c) Section 20 of Batas Pambansa Blg. 129; (d) Pres. Decree No. 1860;
and (e) Pres. Decree No. 1861.

The latest law on the Sandiganbayan, Sec. 1 of Pres. Decree No. 1861 reads as follows:

"SECTION 1. Section 4 of Presidential Decree No. 1606 is hereby amended to read

as follows:

'SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise:

'(a) Exclusive original jurisdiction in all cases involving:

...

(2) Other offenses or felonies committed by public officers and employees in

relation to their office, including those employed in government-owned or
controlled corporation, whether simple or complexed with other crimes,
where the penalty prescribed by law is higher that prision correccional or
imprisonment for six (6) years, or a fine of P6,000: PROVIDED, HOWEVER,
that offenses or felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or imprisonment for
six (6) years or a fine of P6,000 shall be tried by the proper Regional Trial
Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit
Trial Court."

A perusal of the aforecited law shows that two requirements must concur under Sec. 4 (a) (2)
for an offense to fall under the Sandiganbayan's jurisdiction, namely: the offense committed
by the public officer must be in relation to his office and the penalty prescribed be higher
then prision correccional or imprisonment for six (6) years, or a fine of P6,000.00.11

Applying the law to the case at bench, we find that although the second requirement has
been met, the first requirement is wanting. A review of these Presidential Decrees, except
Batas Pambansa Blg. 129, would reveal that the crime committed by public officers or
employees must be "in relation to their office" if it is to fall within the jurisdiction of the
Sandiganbayan. This phrase which is traceable to Pres. Decree No. 1468, has been retained
by Pres. Decree No. 1861 as a requirement before the Ombudsman can acquire primary
jurisdiction on its power to investigate.

It cannot be denied that Pres. Decree No. 1861 is in pari materia to Article XI, Sections
12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989 because, as
earlier mentioned, the Ombudsman's power to investigate is dependent on the cases
cognizable by the Sandiganbayan. Statutes are in pari materia when they relate to the
same person or thing or to the same class of persons or things, or object, or cover the
same specific or particular subject matter.

It is axiomatic in statutory construction that a statute must be interpreted, not only to

be consistent with itself, but also to harmonize with other laws on the same subject
matter, as to form a complete, coherent and intelligible system. The rule is expressed
in the maxim, "interpretare et concordare legibus est optimus interpretandi," or every
statute must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence. Thus, in the application and interpretation of Article XI,
Sections 12 and 13 of the 1987 Constitution and the Ombudsman Act of 1989, Pres.
 Decree No. 1861 must be taken into consideration. It must be assumed that when the
1987 Constitution was written, its framers had in mind previous statutes relating to the
same subject matter. In the absence of any express repeal or amendment, the 1987
Constitution and the Ombudsman Act of 1989 are deemed in accord with existing
statute, specifically, Pres. Decree No. 1861.12 (Emphasis supplied)

R.A. No. 8249 which amended Section 4, paragraph (b) of the Sandiganbayan Law (P.D. 1861)
likewise provides that for other offenses, aside from those enumerated under paragraphs (a) and (c),
to fall under the exclusive jurisdiction of the Sandiganbayan, they must have been committed by
public officers or employees in relation to their office.

In summation, the Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of the
Sandiganbayan Law, as amended, do not give to the Ombudsman exclusive jurisdiction to
investigate offenses committed by public officers or employees. The authority of the Ombudsman to
investigate offenses involving public officers or employees is concurrent with other government
investigating agencies such as provincial, city and state prosecutors. However, the Ombudsman, in
the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over,
at any stage, from any investigating agency of the government, the investigation of such cases.

In other words, respondent DOJ Panel is not precluded from conducting any investigation of cases
against public officers involving violations of penal laws but if the cases fall under the exclusive
jurisdiction of the Sandiganbayan, then respondent Ombudsman may, in the exercise of its primary
jurisdiction take over at any stage.

Thus, with the jurisprudential declarations that the Ombudsman and the DOJ have concurrent
jurisdiction to conduct preliminary investigation, the respective heads of said offices came up with
OMB-DOJ Joint Circular No. 95-001 for the proper guidelines of their respective prosecutors in the
conduct of their investigations, to wit:

OMB-DOJ JOINT CIRCULAR NO. 95-001

Series of 1995

TO: ALL GRAFT INVESTIGATION/SPECIAL PROSECUTION OFFICERS OF THE OFFICE

OF THE OMBUDSMAN

ALL REGIONAL STATE PROSECUTORS AND THEIR ASSISTANTS, PROVINCIAL/CITY

PROSECUTORS AND THEIR ASSISTANTS, STATE PROSECUTORS AND
PROSECUTING ATTORNEYS OF THE DEPARTMENT OF JUSTICE.

SUBJECT: HANDLING COMPLAINTS FILED AGAINST PUBLIC OFFICERS AND

EMPLOYEES, THE CONDUCT OF PRELIMINARY INVESTIGATION, PREPARATION OF
RESOLUTIONS AND INFORMATIONS AND PROSECUTION OF CASES BY PROVINCIAL
AND CITY PROSECUTORS AND THEIR ASSISTANTS.

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

In a recent dialogue between the OFFICE OF THE OMBUDSMAN and the DEPARTMENT
OF JUSTICE, discussion centered around the latest pronouncement of the supreme court on
the extent to which the ombudsman may call upon the government prosecutors for
assistance in the investigation and prosecution of criminal cases cognizable by his office and
 the conditions under which he may do so. Also discussed was Republic Act No. 7975
otherwise known as "an act to strengthen the functional and structural organization of the
sandiganbayan, amending for the purpose presidential decree no. 1606, as amended" and
its implications on the jurisdiction of the office of the Ombudsman on criminal offenses
committed by public officers and employees.

Concerns were expressed on unnecessary delays that could be caused by discussions on

jurisdiction between the OFFICE OF THE OMBUDSMAN and the department of justice, and
by procedural conflicts in the filing of complaints against public officers and employees, the
conduct of preliminary investigations, the preparation of resolutions and informations, and
the prosecution of cases by provincial and city prosecutors and their assistants as deputized
prosecutors of the ombudsman.

Recognizing the concerns, the office of the ombudsman and the department of justice, in a
series of consultations, have agreed on the following guidelines to be observed in the
investigation and prosecution of cases against public officers and employees:

1. Preliminary investigation and prosecution of offenses committed by public officers and

employees in relation to office whether cognizable by the sandiganbayan or the regular
courts, and whether filed with the office of the ombudsman or with the office of the
provincial/city prosecutor shall be under the control and supervision of the office of the
ombudsman.

2. Unless the Ombudsman under its Constitutional mandate finds reason to believe
otherwise, offenses not in relation to office and cognizable by the regular courts shall be
investigated and prosecuted by the office of the provincial/city prosecutor, which shall rule
thereon with finality.

3. Preparation of criminal information shall be the responsibility of the investigating officer

who conducted the preliminary investigation. Resolutions recommending prosecution
together with the duly accomplished criminal informations shall be forwarded to the
appropriate approving authority.

4. Considering that the office of the ombudsman has jurisdiction over public officers and
employees and for effective monitoring of all investigations and prosecutions of cases
involving public officers and employees, the office of the provincial/city prosecutor shall
submit to the office of the ombudsman a monthly list of complaints filed with their respective
offices against public officers and employees.

Manila, Philippines, October 5, 1995.

(signed) (signed)

TEOFISTO T. GUINGONA, JR. ANIANO A. DESIERTO

Secretary Ombudsman
Department of Justice Office of the Ombudsman

A close examination of the circular supports the view of the respondent Ombudsman that it is just an
internal agreement between the Ombudsman and the DOJ.
Sections 2 and 4, Rule 112 of the Revised Rules on Criminal Procedure on Preliminary
Investigation, effective December 1, 2000, to wit:

SEC. 2. Officers authorized to conduct preliminary investigations-

The following may conduct preliminary investigations:

(a) Provincial or City Prosecutors and their assistants;

(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;

(c) National and Regional State Prosecutors; and

(d) Other officers as may be authorized by law.

Their authority to conduct preliminary investigation shall include all crimes

cognizable by the proper court in their respective territorial jurisdictions.

SEC. 4. Resolution of investigating prosecutor and its review. - If the investigating prosecutor
finds cause to hold the respondent for trial, he shall prepare the resolution and information,
He shall certify under oath in the information that he, or as shown by the record, an
authorized officer, has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy
in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor
or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may,
by himself file the information against the respondent, or direct another assistant prosecutor
or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or information with notice
to the parties. The same Rule shall apply in preliminary investigations conducted by the
officers of the Office of the Ombudsman. (Emphasis supplied)
confirm the authority of the DOJ prosecutors to conduct preliminary investigation of criminal
complaints filed with them for offenses cognizable by the proper court within their respective
territorial jurisdictions, including those offenses which come within the original jurisdiction of the
Sandiganbayan; but with the qualification that in offenses falling within the original jurisdiction of the
Sandiganbayan, the prosecutor shall, after their investigation, transmit the records and their
resolutions to the Ombudsman or his deputy for appropriate action. Also, the prosecutor
cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor
can the prosecutor file an Information with the Sandiganbayan without being deputized by, and
without prior written authority of the Ombudsman or his deputy.

Next, petitioner contends that under OMB-Joint Circular No. 95-001, there is no showing that the
Office of the Ombudsman has deputized the prosecutors of the DOJ to conduct the preliminary
investigation of the charge filed against him.

We find no merit in this argument. As we have lengthily discussed, the Constitution, the Ombudsman
Act of 1989, Administrative Order No. 8 of the Office of the Ombudsman, the prevailing
jurisprudence and under the Revised Rules on Criminal Procedure, all recognize and uphold the
concurrent jurisdiction of the Ombudsman and the DOJ to conduct preliminary investigation on
charges filed against public officers and employees.

To reiterate for emphasis, the power to investigate or conduct preliminary investigation on charges
against any public officers or employees may be exercised by an investigator or by any provincial or
city prosecutor or their assistants, either in their regular capacities or as deputized Ombudsman
prosecutors. The fact that all prosecutors are in effect deputized Ombudsman prosecutors under the
OMB-DOJ Circular is a mere superfluity. The DOJ Panel need not be authorized nor deputized by
the Ombudsman to conduct the preliminary investigation for complaints filed with it because the
DOJ's authority to act as the principal law agency of the government and investigate the commission
of crimes under the Revised Penal Code is derived from the Revised Administrative Code which had
been held in the Natividad case13 as not being contrary to the Constitution. Thus, there is not even a
need to delegate the conduct of the preliminary investigation to an agency which has the jurisdiction
to do so in the first place. However, the Ombudsman may assert its primary jurisdiction at any stage
of the investigation.

Petitioner's contention that OMB-DOJ Joint Circular No. 95-001 is ineffective on the ground that it
was not published is not plausible. We agree with and adopt the Ombudsman's dissertation on the
matter, to wit:

Petitioner appears to be of the belief, although NOT founded on a proper reading and
application of jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an internal
arrangement between the DOJ and the Office of the Ombudsman, has to be published.

As early as 1954, the Honorable Court has already laid down the rule in the case of People
vs. Que Po Lay, 94 Phil. 640 (1954) that only circulars and regulations which prescribe a
penalty for its violation should be published before becoming effective, this, on the general
principle and theory that before the public is bound by its contents, especially its penal
provision, a law, regulation or circular must first be published and the people officially and
specifically informed of said contents and its penalties: said precedent, to date, has not yet
been modified or reversed. OMB-DOJ Joint Circular No. 95-001 DOES NOT contain any
penal provision or prescribe a mandatory act or prohibit any, under pain or penalty.

What is more, in the case of Tanada v. Tuvera, 146 SCRA 453 (1986), the Honorable Court
ruled that:
 Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties. (at page 454. emphasis supplied)

OMB-DOJ Joint Circular No. 95-001 is merely an internal circular between the DOJ and the
Office of the Ombudsman, outlining authority and responsibilities among prosecutors of the
DOJ and of the Office of the Ombudsman in the conduct of preliminary investigation. OMB-
DOJ Joint Circular No. 95-001 DOES NOT regulate the conduct of persons or the public, in
general.

Accordingly, there is no merit to petitioner's submission that OMB-DOJ Joint Circular No. 95-
001 has to be published.14

Petitioner insists that the Ombudsman has jurisdiction to conduct the preliminary investigation
because petitioner is a public officer with salary Grade 31 so that the case against him falls
exclusively within the jurisdiction of the Sandiganbayan. Considering the Court's finding that the DOJ
has concurrent jurisdiction to investigate charges against public officers, the fact that petitioner holds
a Salary Grade 31 position does not by itself remove from the DOJ Panel the authority to investigate
the charge of coup d'etat against him.

The question whether or not the offense allegedly committed by petitioner is one of those
enumerated in the Sandiganbayan Law that fall within the exclusive jurisdiction of the
Sandiganbayan will not be resolved in the present petition so as not to pre-empt the result of the
investigation being conducted by the DOJ Panel as to the questions whether or not probable cause
exists to warrant the filing of the information against the petitioner; and to which court should the
information be filed considering the presence of other respondents in the subject complaint.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 80718 January 29, 1988

FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,

vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS
OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.

RESOLUTION

CORTES, J.:

This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special First Division of the Court of Appeals in
the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy, et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30
September 1987 denied petitioners' motion for extension of time to file a motion for reconsideration and directed entry of judgment since the
decision in said case had become final; and the second Resolution dated 27 October 1987 denied petitioners' motion for reconsideration for
having been filed out of time.

At the outset, this Court could have denied the petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would still resolve to deny it.

The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had
been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27, 1987.

This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of
judgment and denied their motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the
fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its
Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208),
this Court en banc restated and clarified the rule, to wit:

Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)

Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.

Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed
the prospective application of said rule, and explained the operation of the grace period, to wit:

In other words, there is a one-month grace period from the promulgation on May 30,
1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30,
1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.

Since petitioners herein filed their motion for extension on February 27, 1986, it is still
within the grace period, which expired on June 30, 1986, and may still be allowed.

This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]

In the instant case, however, petitioners' motion for extension of time was filed on September 9,
1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the length of time from the expiration of
the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to
file a motion for reconsideration within the reglementary period.

Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the Official Gazette before
they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel
as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where
issues have been clarified, consistently reiterated, and published in the advance reports of Supreme
Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA)
and law journals.

This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in
affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which
provides that "the proprietor of a building or structure is responsible for the damage resulting from its
total or partial collapse, if it should be due to the lack of necessary repairs.

Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.

WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-61388 April 20, 1983

IN THE ISSUANCE OF THE WRIT OF HABEAS CORPUS FOR DR. AURORA PARONG,
NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS
SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR., JUANITO GRANADA and
TOM VASQUEZ. JOSEFINA GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C. VER, GEN. FIDEL V. RAMOS, and FIDEL V.
RAMOS, and LT. COL. MIGUEL CORONEL, respondents.

Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo, Efren M Mercado and Alexander Padilla for
petitioner.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for a writ of habeas corpus and mandamus seeking the following relief:

WHEREFORE, petitioners pray this Honorable Court:

1. To immediately issue a writ of habeas corpus directing respondents to appear and

produce the bodies of Dr. AURORA PARONG, NORBERTO PORTUGUESE,
SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS,
BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO
GRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to make
due return of the writ therewith;

2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of

mandamus compelling the respondents to disclose the petitioners' present place of
detention and to order the respondents to allow counsel and relatives to visit and
confer with the petitioners;

3. Pending the determination of the legality of their continued detention, to forthwith

release the detainees on bail upon such terms and conditions as the Court may fix,
and after hearing, to order petitioners' immediate release; and

4. To grant petitioners such other and further relief as may be deemed just and
equitable in the premises.
The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982
at about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col.
Coronel, lst Lt. de Guzman and lst Lt. Baria, after securing a Search Warrant No. S-82 issued by
Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the
residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong,
Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto
Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra.
Parong's residence which had been doing on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanita
Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC
teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347,
was seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained
at the PC/INP Command Headquarters, Bayombong, Nueva Vizcaya from July 6, 1982 until their
transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame,
Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla,
mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of
the instant petition has, however, become moot and academic, and whereabouts of petitioners
having already become known to petitioner Josefina Garcia-Padilla.

It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was
effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only
armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First
Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much
less detention; that the search warrant which authorized respondents to seize "subversive
documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the
house and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal
per se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20
SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the
fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya
from July 6 up to August 10, 1982, but were subsequently transferred by helicopter in the morning of
August 10, 1982 to a place or safehouse known only to respondents; that there is no judgment,
decree, decision or order from a court of law which would validate the continued detention of the
petitioner; that while it is true that a purported telegram stating the issuance of a Presidential
Commitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, but
counsel and the detainees have not yet been given a copy of such PCO nor notified of its contents,
raising a doubt whether such commitment order has in fact been issued.

It is further alleged that respondents are denying the detainees their constitutional right to counsel,
averring that the detainees were allowed regular visits by counsel and relatives during their period of
detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya;
however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame
Intelligence Units) took full control of the investigation, counsels were allowed to visit only on
weekends; that when the detainees were transferred on August 10, 1982 to a place known only to
respondents, the detainees' counsels and relatives were not notified, raising the apprehension that
petitioners' constitutional rights to silence, to counsel and against self- incrimination are being
violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp
Bago Bantay but to no avail; that Major Forondo of the PC Command in Nueva Viscaya informed
Mrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to
Echague, Isabela; that there seems to be a deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place of detention, raising the apprehension that
respondents are using force, violence, threat, intimidation and other means which vitiate free will to
obtain confession and statements from the detainees in violation of their constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued
and respondents were required to make a return of the writ. Hearing on the petition was set on
August 26, 1982.

In the return to the writ filed on August 23, 1982. respondents, through the Solicitor General, alleged,
to wit:

I. AS TO HABEAS CORPUS

1. The detainees mentioned in the petition, with the exception of Tom Vasquez who
was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all
being detained by virtue of a Presidential Commitment Order (PCO) issued on July
12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential
Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by
President Ferdinand E. Marcos for violation of P.D. No. 885. ...

2. The corresponding charges against the said detainees have been filed in court
and before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A
warrant of arrest against detainee Dra. Aurora Parong was issued on August 4,
1982, by the Municipal Court of Bayombong, for illegal possession of firearm and
ammunition. ...

II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

3. The persons named in the above-mentioned Presidential Commitment Order were

arrested and are being detained for offenses with respect to which under
Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be
suspended, thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime

Minister of the Philippines, by virtue of the powers vested in me by
the Constitution, do hereby revoke Proclamation No. 1081
(Proclaiming a state of Martial Law in the Philippines) and
Proclamation No. 1104 (Declaring the Continuation of Martial Law)
and proclaim the termination of the state of martial law throughout the
Philippines; Provided, that the call to the Armed Forces of the
Philippines to prevent or suppress lawless violence, insurrection,
rebellion and subversion shall continue to be in force and effect; and
Provided that in the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the privilege of the
writ of habeas corpus shag continue; and in all other places the
suspension of the privilege of the writ shall also continue with respect
to persons at present detained as well as others who may hereafter
be similarly detained for the crimes of insurrection or rebellion,
 subversion, conspiracy or proposals to commit such crimes, and for
all other crimes and offenses committed by them in furtherance or on
the occasion thereof, or incident thereto, or in connection
therewith. (Emphasis supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot
inquire into the validity and cause of their arrest and detention.

4. The power of the President in an emergency, such as that which necessitated the
continued suspension of the privilege of the writ of habeas corpus, to order the
detention of persons believed engaged in crimes related to national security is
recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military
Commission, No. 1, et al., 102 SCRA 56).

5. In the instant petition, petitioner Josefina Garcia-Padilla does not appear to have
been authorized by the thirteen (13) other detainees to represent them in the case at
bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the
following resolution, to wit:

G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas
Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano
Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr.,
Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce
Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.)- The
return of the writ of habeas corpus and answer to the prayer for mandamus filed by
the Solicitor General for respondents in compliance with the resolution of August 17,
1982 is NOTED.

At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys
Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General
Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared
for the respondents. All of the detainees, except Tom Vasquez, who was temporarily
released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin
Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida
Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla
argued for the petitioner. Solicitor General Mendoza argued for the respondents.
Former Senator Diokno argued in the rebuttal. The Court Resolved to require the
Solicitor General to SUBMIT within five (5) days from date the documents relevant to
the issuance of the Presidential Commitment Order. Thereafter, the case shall be
considered SUBMITTED for resolution.

As required, the Solicitor General submitted the documents relevant to the issuance of the
Presidential Commitment Order on August 27, 1982, after which the case was submitted for
resolution.

The fundamental issue here, as in all petitioner for the writ of habeas corpus, is whether or not
petitioners' detention is legal. We have carefully gone over the claims of the parties in their
respective pleadings as well as in the oral argument during the hearing on August 26, 1982, and We
find that petitioners have not been illegally deprived of their constitutional right to liberty, neither in
the manner of their arrest, nor by their continued detention, and that the circumstances attendant in
the herein case do not warrant their release on a writ of habeas corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982,
records reveal that they were then having conference in the dining room of Dra. Parong's residence
from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under
surveillance as they were then Identified as members of the Communist Party of the Philippines
(CPP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in
Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9)
detainees mentioned scampered towards different directions leaving in top of their conference table
numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and
other papers, including a plan on how they would infiltrate the youth and student sector (code-named
YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of
ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed
to be CPP/NPA funds, assorted medicine packed and ready for distribution, as sizeable quantity of
printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in
the arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial
warrant as specifically provided for under Section 6(a), Rule 113 of the Rules of Court and allowed
under existing jurisprudence on the matter. As provided therein, a peace officer or a private person
may, without a warrant, arrest a person when the person to be arrested has committed or actually
committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally
is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the
furtherance on the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart
from the common offenses, aside from their essentially involving a massive conspiracy of nationwide
magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and
existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for
committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in
the course of an armed conflict, to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which requires the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to
arresting or capturing persons committing overt acts of violence against government forces, or any
other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very survival of society and its
government and duly constituted authorities. If killing and other acts of violence against the rebels
find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or
insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them
while any of these contingencies continues cannot be less justified. In the language of Moyer vs.
Peabody, 1 cited with approval in Aquino, et al. vs. Ponce Enrile, 2 the President " shall make the
ordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he
may use the milder measure of seizing the bodies of those whom he considers to stand in the way of
restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to
prevent the exercise of hostile power."
Thus characterized, the arrest and detention of persons ordered by the President through the
issuance of Presidential Commitment Order PCO is merely preventive. "When it comes to a decision
by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield
to what he deems the necessities of the moment. Public danger warrants the substitution of
executive process for judicial process." 3 What should be underscored is that if the greater violation
against life itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as
transgressing against the due process clause that protects life, liberty and property, lesser violations
against liberty, such as arrest and detention, may not be insisted upon as reviewable by the courts.

3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential

Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following
their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly
and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as
what had been seen lately of such petitioners being filed in this Court one after the other.

The function of the PCO is to validate, on constitutional ground, the detention of a person for any of
the offenses covered by Proclamation No. 2045 which continues in force the suspension of the
privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant, its
legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the
detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the
said privilege provides the basis for continuing with perfect legality the detention as long as the
invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public
safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-
in-Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its
legality in the light of the bill of rights guarantee to individual freedom. This must be so because the
suspension of the privilege is a military measure the necessity of which the President alone may
determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed
Forces, of protecting not only public safety but the very life of the State, the government and duly
constituted authorities. This should be clear beyond doubt in the case of "invasion," along which
"rebellion" or "insurrection" is mentioned by the Constitution, which contingency does not present a
legal question on whether there is a violation of the right to personal liberty when any member of the
invading force is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the
Nation besets the country in times of the aforementioned contingencies. In the discharge of this
awesome and sacred responsibility, the President should be free from interference. The existence of
warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies
that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this
regard to judicial inquiry or interference from whatever source. If freedom from judicial review is
conceded in the exercise of his peacetime powers as that of appointment and of granting pardon,
denominated as political powers of the President, it should incontestably be more so with his
wartime power, as it were, to adopt any measure in dealing with situations calling for military action
as in case of invasion, rebellion or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective,
the occasion for its application on specific individuals should be left to the exclusive and sound
judgment of the President, at least while the exigencies of invasion, rebellion or insurrection persist,
and the public safety requires it, a matter, likewise, which should be left for the sole determination of
the President as Commander-in-Chief of the Nation's armed forces. The need for a unified command
in such contingencies is imperative-even axiomatic-as a basic military concept in the art of warfare.
4. From the clear language of the Lansang case, 4 "the function of Court is merely to check — not to
supplant — the Executive, or to ascertain merely whether he has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his
act. " If, however, the constitutional right to bail is granted to the herein petitioners by the court,
through the procedure laid down under Rule 114 of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons
who come under its coverage.

The specific mention in the Constitution of rebellion and insurrection along with invasion and
imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the
sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore,
should determine the legality of imposing what is commonly referred to as "preventive detention"
resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a
measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure
as a means of defense for national survival quite clearly transcends in importance and urgency the
claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat
the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas
corpus on the occasions expressly mentioned in the charter. For what indeed could the purpose be
of suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration
of the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater
interest of public safety and national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the
suspension of the privilege of the writ of habeas corpus, but also other offenses, including
subversion which is not mentioned in the Constitution, committed by reason or on the occasion of
the rebellion, or in connection therewith, or in the furtherance thereof. There need be no alarm over
what libertarian jurists fear as violation of the constitutional right to personal liberty when the
President decrees the suspension of the privilege of habeas corpus. Only those who give cause for it
will be subject to restriction of their liberty, as the necessity therefor arises in the interest of national
defense and survival. The constitutional guarantee of individual freedom is intact in all its plenitude
and sanctity, save only as the Constitution has envisioned the need for its limitation, and only to a
few, in relation to the entire population, as the Constitution itself permits in case of overwhelming
and imperious necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the
privilege of the writ of habeas corpus has been deliberately vested on the President as the
Commander-in-Chief of the armed forces, together with the related power to call out the armed
forces to suppress lawless violence and impose martial law. 5The choice could not have been more
wise and sound, for no other official may, with equal capability and fitness, be entrusted with the
grave responsibility that goes with the grant of the authority. The legislature was considered in the
alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the
Constitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger
thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also
mentioned therein not in their concept as statutorily-defined public crimes, but as a state or condition
of extreme emergency resulting from the existence of the aforesaid events. Now, if captured
enemies from the invading force may not be charged with any statutory offense that would provide
the occasion to demand the right to bail, it is obvious that persons engaged in rebellion or
insurrection may not claim the right to be released on bail when similarly captured or arrested during
the continuance of the aforesaid contingency. They may not even claim the right to be charged
immediately in court, as they may rightfully do so, were they being charged with an ordinary or
common offense. This is so because according to legal writers or publicists, the suspension of the
privilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trials
of persons charged with certain offenses during the period of emergency." 6 This clearly means
denial of the right to be released on bail on being charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the
suspension of the right to bail, if the government's campaign to suppress the rebellion is to be
enhanced and rendered effective. If the right to bail may be demanded during the continuance of the
rebellion, and those arrested, captured and detained in the course thereof will be released, they
would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of
government efforts to bring to an end the invasion, rebellion or insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to
be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of
how rebellion is committed, involving a great mass of confederates bound together by a common
goal, he remains in a state of continued participation in the criminal act or design. His heart still
beats with the same emotion for the success of the movement of which he continues to be an ardent
adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a
captured rebel to be charged in court, only to be released on bail, while he is, realistically and
legally, still as much as part and parcel of the movement, continuing as it is, as those still engaged in
carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to
perceive how impressed with absolute verity is the opinion expressed by two acknowledged
authorities on Constitutional law in our country, 7 which We quote:

... If the return to the writ shows that the person in custody was apprehended and
detained in areas where the privileges of the writ have been suspended or for the
crimes mentioned in the executive proclamation, the court will suspend further
proceedings in the action.

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case
of Buscayno vs. Military Commission; 8 decided after Proclamation No. 2045 was issued, which in
terms clear and categorical, held that the constitutional right to bail is unavailing when the privilege
of the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described
in the abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap
private individuals, they do not accord to them any of the rights now being demanded by the herein
petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge,
captives of the rebels or insurgents are not only not given the right to be released, but also denied
trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then
sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the
government forces on equal fighting terms with the rebels, by authorizing the detention of their own
rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces
have over those of the government, as when they resort to guerilla tactics with sophisticated
weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It
would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and
compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly
guaranteed by the Constitution by those who themselves seek to destroy that very same instrument,
trampling over it already as they are still waging war against the government. This stark actuality
gives added force and substance to the rationale of the suspension of the privilege of the writ of
habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public
safety requires it.
6. Invoking the Lansang case, 9 however, petitioners would ask this Court to review the issuance of
the PCO against them, intimating that arbitrariness attended its issuance because, relying on the
evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion.
They also contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of
habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no
arbitrariness attendant to the suspension. It never intended to suggest that for every individual case
of arrest and detention, the writ of habeas corpus is available, even after the suspension of this
privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a
person is charged in court for an ordinary offense, the law does not authorize the filing of a petition
for habeas corpus based on the ground that there is absolutely no evidence to hold him for trial,
which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law
has afforded him adequate safeguards against arbitrariness, such as the requirement of determining
the existence of a probable cause by the judge before the issuance of the warrant of arrest. The
finding of such probable cause may not be immediately brought for review by this Court in a habeas
corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the
evidence, and this Court is not the proper forum for the review sought, not being a trier of facts. If
such a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense
by a resort to a petition for habeas corpus based on arbitrariness, which most accuse, if not all,
would be most inclined, specially when they are out on bail. The petition now before Us is exactly
one of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases
to this Court, which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard
to prove, in the face of the formidable obstacle built up by the presumption of regularity in the
performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the
Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof
upon which to show the President having acted with arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the
President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under
LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest
and detention of persons engaged in or charged with, the crimes mentioned in Proclamation No.
2045. They contend that the procedure prescribed in the LOI not having been observed, the PCO
issued thereunder did not validate the initial illegal arrest of the herein petitioners as wen as their
continued detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of
persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, charged with,
the crimes mentioned contemplates of three situations when an arrest can be made, to wit:

1. The arrest and detention effected by virtue of a warrant issued by a judge;

2. The arrest and detention effected by a military commander or the head of a law
enforcement agency after it is determined that the person or persons to be arrested
would probably escape or commit further acts which would endanger public order
and safety. After the arrest, however, the case shall be immediately referred to the
city or provincial fiscal or to the municipal, city, circuit, or district judge for preliminary
examination or investigation who, if the evidence warrants, shall file the
corresponding charges and, thereafter, we a warrant of arrest;
 3. The military commander or the head of the law enforcement agency may apply to
the President thru the Minister of National Defense, for a Presidential Commitment
Order under the following circumstances:

(a) When resort to judicial process is not possible or expedient

without endangering public order and safety; or

(b) When the release on bail of the person or persons already under
arrest by virtue of a judicial warrant would endanger said public order
and safety.

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring
paragraph 3 of LOI No. 1211, which provides:

3. The above notwithstanding, the military commander or the head of the law
enforcement agency may apply to the President thru the Minister of National
Defense, for a Presidential Commitment Order covering the person or persons
believed to be participants in the commission of the crimes referred to in paragraph 1
under the following circumstances:

(a) When resort to judicial process is not possible or expedient

without endangering public order and safety; or

(b) When the release on bail of the person or persons already under
arrest by virtue of a judicial warrant would endanger said public order
and safety.

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial
warrant before a person may be arrested and detained is not well-founded. Neither is the contention
that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and
constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to
judicial process is possible, where, in the judgment of the President, a resort thereto would not be
expedient because it would endanger the public order or safety, a PCO is justified. So, too, when
release on bail in the ordinary judicial process will invite the same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as
Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing
officers for the ultimate objective of providing guidelines in the arrest and detention of the persons
covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual
liberties without sacrificing the requirements of public order and safety and the effectiveness of the
campaign against those seeking the forcible overthrow of the government and duty constituted
authorities. " LOI 1211 does not, in any manner, limit the authority of the President to cause the
arrest and detention of persons engaged in, or charged with the crimes or offenses mentioned in
said Proclamation in that he (President) would subject himself to the superior authority of the judge
who, under normal judicial processes in the prosecution of the common offenses, is the one
authorized to issue a judicial warrant after a preliminary investigation is conducted with a finding of
probable cause. Those who would read such an intention on the part of the President in issuing LOI
1211 seems to do so in their view that LOI forms part of the law of the land under the 1976
amendment of the Constitution. 10 They would then contend that a PCO issued not in compliance
with the provisions of the LOI would be an illegality and of no effect.
To form part of the law of the land, the decree, order or LOI must be issued by the President in the
exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976
amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a
threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any reason that in his judgment
requires immediate action. There can be no pretense, much less a showing, that these conditions
prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be
dignified into forming part of the law of the land.

In the event then that the judge believes no warrant shall issue, the President, under Presidential
Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly
provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial
machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal
liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any
intention on his part to renounce or to allow even mere curtailment of his power such that the judicial
process will thereupon take its normal course, under which the detainees or accused would then be
entitled to demand their right of due process, particularly in relation to their personal liberty. 11 The
issuance of the PCO by the President necessarily constitutes a finding that the conditions he has
prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention
would be pursuant to the executive process incident to the government campaign against the rebels,
subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan
case,* as above intimated, must have shown him that to prosecute the offense through the judicial process of forthwith instead of deferring
it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to
reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs.
Castaneda, 91 Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of
habeas corpus is "final and conclusive upon the courts, and all other persons." This well-settled
ruling was diluted in the Lansang case which declared that the "function of the Court is merely to
check — not to supplant — the Executive, or ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction not to exercise the power vested in him or to determine the
wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down
therein is not whether the President acted correctly but whether he acted arbitrarily. This would
seem to be pure semanticism, if We consider that with particular reference to the nature of the
actions the President would take on the occasion of the grave emergency he has to deal with, which,
as clearly indicated in Section 9, Art. VII of the Constitution partakes of military measures, the
judiciary can, with becoming modesty, ill afford to assume the authority to check or reverse or
supplant the presidential actions. On these occasions, the President takes absolute command, for
the very life of the Nation and its government, which, incidentally, includes the courts, is in grave
peril. In so doing, the President is answerable only to his conscience, the people and to God. For
their part, in giving him the supreme mandate as their President, the people can only trust and pray
that, giving him their own loyalty with utmost patriotism, the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice,
went along with the proposition that the decision of the Executive in the exercise of his power to
suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is
"ordinarily beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the Judiciary should maintain a mutually
deferential attitude. This is the very essence of the doctrine of "political question, " as determining
the justiciability of a case. The wisdom of this concept remains well-recognized in advanced
constitutional systems. To erase it from our own system as seems to be what was done in the
Lansang case, may neither be proper nor prudent. A good example could be given in the exercise of
the presidential power of pardon which is beyond judicial review, specially under the new
Constitution where the condition that it may be granted only after final conviction has been done
away with.

True, the Constitution is the law "equally in war and in peace," 12 as Chief Justice Fernando cited in
his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the
President specific "military power" in times of warlike conditions as exist on the occasion of invasion,
insurrection or rebellion. Both power and right are constitutionally granted, with the difference that
the guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is
for public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is
intended as a limitation of the right, in much the same way as individual freedom yields to the
exercise of the police power of the State in the interest of general welfare. The difference again is
that the power comes into being during extreme emergencies the exercise of which, for complete
effectiveness for the purpose it was granted should not permit intereference, while individual
freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the
nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime
and in time of war; it is not that in time of war the Constitution is silenced. The Founding Fathers,
with admirable foresight and vision, inserted provisions therein that come into play and application in
time of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense of
the State is a prime duty of government. Compulsory military service may be imposed, certainly a
mandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that the
duty of the judiciary to protect individual rights must yield to the power of the Executive to protect the
State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees the right to
personal liberty, perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation
to the President. 13 Would it not be as proper and wholly acceptable to lay down the principle that
during such crises, the judiciary should be less jealous of its power and more trusting of the
Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the
existence of the emergencies should be left to President's sole and unfettered determination. His
exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof,
should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential
acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh
impossible it is for the courts to contradict the finding of the President on the existence of the
emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For
the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a
violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor
of adhering to the more desirable and long-tested doctrine of "political question" in reference to the
power of judicial review. 14

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the
reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro
vs. Castaneda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the
Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the
effect of allowing the Executive to defer the prosecution of any of the offenses covered by
Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of
the suspension of the privilege, of the right to bail. The power could have been vested in Congress,
instead of the President, as it was so vested in the United States for which reason, when President
Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court
expressed the opinion that Congress alone possessed this power under the
Constitutional., 15 Incidentally, it seems unimaginable that the judiciary could subject the suspension,
if decreed through congressional action, to the same inquiry as our Supreme Court did with the act
of the President, in the Lansang case, to determine if the Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the
exclusive prerogative of the President under the Constitution, may not be declared void by the
courts, under the doctrine of "political question," as has been applied in
the Baker and Castaneda cases, on any ground, let alone its supposed violation of the provision of
LOI 1211, thus diluting, if not abandoning the doctrine of the Lansang case. The supreme mandate
received by the President from the people and his oath to do justice to every man should be
sufficient guarantee, without need of judicial overseeing, against commission by him of an act of
arbitrariness in the discharge particularly of those duties imposed upon him for the protection of
public safety which in itself includes the protection of life, liberty and property. This Court is not
possessed with the attribute of infallibility that when it reviews the acts of the President in the
exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as to
commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid and legal, and their right to be released even
after the filing of charges against them in court, to depend on the President, who may order the
release of a detainee or his being placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 166471 March 22, 2011

TAWANG MULTI-PURPOSE COOPERATIVE Petitioner,

vs.
LA TRINIDAD WATER DISTRICT, Respondent.

DECISION

CARPIO, J.:

The Case

This is a petition for review on certiorari under Rule 45 of the Rules of Court. The petition1 challenges
the 1 October 2004 Judgment2 and 6 November 2004 Order3 of the Regional Trial Court (RTC),
Judicial Region 1, Branch 62, La Trinidad, Benguet, in Civil Case No. 03-CV-1878.

The Facts

Tawang Multi-Purpose Cooperative (TMPC) is a cooperative, registered with the Cooperative

Development Authority, and organized to provide domestic water services in Barangay Tawang, La
Trinidad, Benguet.

La Trinidad Water District (LTWD) is a local water utility created under Presidential Decree (PD) No.
198, as amended. It is authorized to supply water for domestic, industrial and commercial purposes
within the municipality of La Trinidad, Benguet.

On 9 October 2000, TMPC filed with the National Water Resources Board (NWRB) an application for
a certificate of public convenience (CPC) to operate and maintain a waterworks system in Barangay
Tawang. LTWD opposed TMPC’s application. LTWD claimed that, under Section 47 of PD No. 198,
as amended, its franchise is exclusive. Section 47 states that:

Sec. 47. Exclusive Franchise. No franchise shall be granted to any other person or agency for
domestic, industrial or commercial water service within the district or any portion thereof unless and
except to the extent that the board of directors of said district consents thereto by resolution duly
adopted, such resolution, however, shall be subject to review by the Administration.

In its Resolution No. 04-0702 dated 23 July 2002, the NWRB approved TMPC’s application for a
CPC. In its 15 August 2002 Decision,4 the NWRB held that LTWD’s franchise cannot be exclusive
since exclusive franchises are unconstitutional and found that TMPC is legally and financially
qualified to operate and maintain a waterworks system. NWRB stated that:

With respect to LTWD’s opposition, this Board observes that:

1. It is a substantial reproduction of its opposition to the application for water permits previously filed
by this same CPC applicant, under WUC No. 98-17 and 98-62 which was decided upon by this
Board on April 27, 2000. The issues being raised by Oppositor had been already resolved when this
Board said in pertinent portions of its decision:

"The authority granted to LTWD by virtue of P.D. 198 is not Exclusive. While Barangay Tawang is
within their territorial jurisdiction, this does not mean that all others are excluded in engaging in such
service, especially, if the district is not capable of supplying water within the area. This Board has
time and again ruled that the "Exclusive Franchise" provision under P.D. 198 has misled most water
districts to believe that it likewise extends to be [sic] the waters within their territorial boundaries.
Such ideological adherence collides head on with the constitutional provision that "ALL WATERS
AND NATURAL RESOURCES BELONG TO THE STATE". (Sec. 2, Art. XII) and that "No franchise,
certificate or authorization for the operation of public [sic] shall be exclusive in character".

xxxx

All the foregoing premises all considered, and finding that Applicant is legally and financially qualified
to operate and maintain a waterworks system; that the said operation shall redound to the benefit of
the homeowners/residents of the subdivision, thereby, promoting public service in a proper and
suitable manner, the instant application for a Certificate of Public Convenience is, hereby,
GRANTED.5

LTWD filed a motion for reconsideration. In its 18 November 2002 Resolution,6 the NWRB denied
the motion.

LTWD appealed to the RTC.

The RTC’s Ruling

In its 1 October 2004 Judgment, the RTC set aside the NWRB’s 23 July 2002 Resolution and 15
August 2002 Decision and cancelled TMPC’s CPC. The RTC held that Section 47 is valid. The RTC
stated that:

The Constitution uses the term "exclusive in character". To give effect to this provision, a
reasonable, practical and logical interpretation should be adopted without disregard to the ultimate
purpose of the Constitution. What is this ultimate purpose? It is for the state, through its authorized
agencies or instrumentalities, to be able to keep and maintain ultimate control and supervision over
the operation of public utilities. Essential part of this control and supervision is the authority to grant
a franchise for the operation of a public utility to any person or entity, and to amend or repeal an
existing franchise to serve the requirements of public interest. Thus, what is repugnant to the
Constitution is a grant of franchise "exclusive in character" so as to preclude the State itself from
granting a franchise to any other person or entity than the present grantee when public interest so
requires. In other words, no franchise of whatever nature can preclude the State, through its duly
authorized agencies or instrumentalities, from granting franchise to any person or entity, or to repeal
or amend a franchise already granted. Consequently, the Constitution does not necessarily prohibit
a franchise that is exclusive on its face, meaning, that the grantee shall be allowed to exercise this
present right or privilege to the exclusion of all others. Nonetheless, the grantee cannot set up its
exclusive franchise against the ultimate authority of the State.7

TMPC filed a motion for reconsideration. In its 6 November 2004 Order, the RTC denied the motion.
Hence, the present petition.

Issue
TMPC raises as issue that the RTC erred in holding that Section 47 of PD No. 198, as amended, is
valid.

The Court’s Ruling

The petition is meritorious.

What cannot be legally done directly cannot be done indirectly. This rule is basic and, to a
reasonable mind, does not need explanation. Indeed, if acts that cannot be legally done directly can
be done indirectly, then all laws would be illusory.

In Alvarez v. PICOP Resources, Inc.,8 the Court held that, "What one cannot do directly, he cannot
do indirectly."9 In Akbayan Citizens Action Party v. Aquino,10 quoting Agan, Jr. v. Philippine
International Air Terminals Co., Inc.,11 the Court held that, "This Court has long and consistently
adhered to the legal maxim that those that cannot be done directly cannot be done
indirectly."12 In Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas,13the Court
held that, "No one is allowed to do indirectly what he is prohibited to do directly."14

The President, Congress and the Court cannot create directly franchises for the operation of a public
utility that are exclusive in character. The 1935, 1973 and 1987 Constitutions expressly and clearly
prohibit the creation of franchises that are exclusive in character. Section 8, Article XIII of the 1935
Constitution states that:

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or other entities organized under the
laws of the Philippines, sixty per centum of the capital of which is owned by citizens of the
Philippines, nor shall such franchise, certificate or authorization be exclusive in character or for a
longer period than fifty years. (Empahsis supplied)

Section 5, Article XIV of the 1973 Constitution states that:

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or associations organized under the
laws of the Philippines at least sixty per centum of the capital of which is owned by such
citizens, nor shall such franchise, certificate or authorization be exclusive in character or for a
longer period than fifty years. (Emphasis supplied)

Section 11, Article XII of the 1987 Constitution states that:

No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to corporations or associations organized under the
laws of the Philippines, at least sixty per centum of whose capital is owned by such citizens, nor
shall such franchise, certificate or authorization be exclusive in character or for a longer period
than fifty years. (Emphasis supplied)

Plain words do not require explanation. The 1935, 1973 and 1987 Constitutions are clear —
franchises for the operation of a public utility cannot be exclusive in character. The 1935, 1973 and
1987 Constitutions expressly and clearly state that, "nor shall such franchise x x x be exclusive
in character." There is no exception.
When the law is clear, there is nothing for the courts to do but to apply it. The duty of the Court is to
apply the law the way it is worded. In Security Bank and Trust Company v. Regional Trial Court of
Makati, Branch 61,15 the Court held that:

Basic is the rule of statutory construction that when the law is clear and unambiguous, the court
is left with no alternative but to apply the same according to its clear language. As we have
held in the case of Quijano v. Development Bank of the Philippines:

"x x x We cannot see any room for interpretation or construction in the clear and unambiguous
language of the above-quoted provision of law. This Court had steadfastly adhered to the
doctrine that its first and fundamental duty is the application of the law according to its
express terms, interpretation being called for only when such literal application is impossible. No
process of interpretation or construction need be resorted to where a provision of law peremptorily
calls for application. Where a requirement or condition is made in explicit and unambiguous
terms, no discretion is left to the judiciary. It must see to it that its mandate is
obeyed."16(Emphasis supplied)

In Republic of the Philippines v. Express Telecommunications Co., Inc.,17 the Court held that, "The
Constitution is quite emphatic that the operation of a public utility shall not be exclusive."18 In Pilipino
Telephone Corporation v. National Telecommunications Commission,19 the Court held that, "Neither
Congress nor the NTC can grant an exclusive ‘franchise, certificate, or any other form of
authorization’ to operate a public utility."20 In National Power Corp. v. Court of Appeals,21 the Court
held that, "Exclusivity of any public franchise has not been favored by this Court such that in most, if
not all, grants by the government to private corporations, the interpretation of rights, privileges or
franchises is taken against the grantee."22 In Radio Communications of the Philippines, Inc. v.
National Telecommunications Commission,23 the Court held that, "The Constitution mandates that a
franchise cannot be exclusive in nature."24

Indeed, the President, Congress and the Court cannot create directly franchises that are exclusive in
character. What the President, Congress and the Court cannot legally do directly they cannot do
indirectly. Thus, the President, Congress and the Court cannot create indirectly franchises that are
exclusive in character by allowing the Board of Directors (BOD) of a water district and the Local
Water Utilities Administration (LWUA) to create franchises that are exclusive in character.

In PD No. 198, as amended, former President Ferdinand E. Marcos (President Marcos) created
indirectly franchises that are exclusive in character by allowing the BOD of LTWD and the LWUA to
create directly franchises that are exclusive in character. Section 47 of PD No. 198, as amended,
allows the BOD and the LWUA to create directly franchises that are exclusive in character. Section
47 states:

Sec. 47. Exclusive Franchise. No franchise shall be granted to any other person or agency for
domestic, industrial or commercial water service within the district or any portion thereof unless and
except to the extent that the board of directors of said district consents thereto by resolution
duly adopted, such resolution, however, shall be subject to review by the Administration.
(Emphasis supplied)

In case of conflict between the Constitution and a statute, the Constitution always prevails because
the Constitution is the basic law to which all other laws must conform to. The duty of the Court is to
uphold the Constitution and to declare void all laws that do not conform to it.

In Social Justice Society v. Dangerous Drugs Board,25 the Court held that, "It is basic that if a law or
an administrative rule violates any norm of the Constitution, that issuance is null and void and has no
effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it
conflicts with the Constitution."26 In Sabio v. Gordon,27 the Court held that, "the Constitution is the
highest law of the land. It is the ‘basic and paramount law to which all other laws must
conform.’"28 In Atty. Macalintal v. Commission on Elections,29the Court held that, "The Constitution is
the fundamental and paramount law of the nation to which all other laws must conform and in
accordance with which all private rights must be determined and all public authority administered.
Laws that do not conform to the Constitution shall be stricken down for being
unconstitutional."30 In Manila Prince Hotel v. Government Service Insurance System,31 the Court held
that:

Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law
of the nation, it is deemed written in every statute and contract."32 (Emphasis supplied)

To reiterate, the 1935, 1973 and 1987 Constitutions expressly prohibit the creation of franchises that
are exclusive in character. They uniformly command that "nor shall such franchise x x x be
exclusive in character." This constitutional prohibition is absolute and accepts no exception. On the
other hand, PD No. 198, as amended, allows the BOD of LTWD and LWUA to create franchises that
are exclusive in character. Section 47 states that, "No franchise shall be granted to any other person
or agency x x x unless and except to the extent that the board of directors consents thereto x x
x subject to review by the Administration." Section 47 creates a glaring exception to the absolute
prohibition in the Constitution. Clearly, it is patently unconstitutional.

Section 47 gives the BOD and the LWUA the authority to make an exception to the absolute
prohibition in the Constitution. In short, the BOD and the LWUA are given the discretion to create
franchises that are exclusive in character. The BOD and the LWUA are not even legislative bodies.
The BOD is not a regulatory body but simply a management board of a water district. Indeed, neither
the BOD nor the LWUA can be granted the power to create any exception to the absolute prohibition
in the Constitution, a power that Congress itself cannot exercise.

In Metropolitan Cebu Water District v. Adala,33 the Court categorically declared Section 47 void. The
Court held that:

Nonetheless, while the prohibition in Section 47 of P.D. 198 applies to the issuance of CPCs for the
reasons discussed above, the same provision must be deemed void ab initio for being
irreconcilable with Article XIV, Section 5 of the 1973 Constitution which was ratified on January
17, 1973 — the constitution in force when P.D. 198 was issued on May 25, 1973. Thus, Section 5 of
Art. XIV of the 1973 Constitution reads:

"SECTION 5. No franchise, certificate, or any other form of authorization for the operation of a public
utility shall be granted except to citizens of the Philippines or to corporations or associations
organized under the laws of the Philippines at least sixty per centum of the capital of which is owned
by such citizens, nor shall such franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment, alteration, or repeal by the
Batasang Pambansa when the public interest so requires. The State shall encourage equity
participation in public utiltities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their proportionate share in the
capital thereof."
This provision has been substantially reproduced in Article XII Section 11 of the 1987 Constitution,
including the prohibition against exclusive franchises.

xxxx

Since Section 47 of P.D. 198, which vests an "exclusive franchise" upon public utilities, is
clearly repugnant to Article XIV, Section 5 of the 1973 Constitution, it is unconstitutional and
may not, therefore, be relied upon by petitioner in support of its opposition against respondent’s
application for CPC and the subsequent grant thereof by the NWRB.

WHEREFORE, Section 47 of P.D. 198 is unconstitutional.34 (Emphasis supplied)

The dissenting opinion declares Section 47 valid and constitutional. In effect, the dissenting opinion
holds that (1) President Marcos can create indirectly franchises that are exclusive in character; (2)
the BOD can create directly franchises that are exclusive in character; (3) the LWUA can create
directly franchises that are exclusive in character; and (4) the Court should allow the creation of
franchises that are exclusive in character.

Stated differently, the dissenting opinion holds that (1) President Marcos can violate indirectly the
Constitution; (2) the BOD can violate directly the Constitution; (3) the LWUA can violate directly the
Constitution; and (4) the Court should allow the violation of the Constitution.

The dissenting opinion states that the BOD and the LWUA can create franchises that are exclusive
in character "based on reasonable and legitimate grounds," and such creation "should not be
construed as a violation of the constitutional mandate on the non-exclusivity of a franchise" because
it "merely refers to regulation" which is part of "the government’s inherent right to exercise police
power in regulating public utilities" and that their violation of the Constitution "would carry with it the
legal presumption that public officers regularly perform their official functions." The dissenting
opinion states that:

To begin with, a government agency’s refusal to grant a franchise to another entity, based on
reasonable and legitimate grounds, should not be construed as a violation of the constitutional
mandate on the non-exclusivity of a franchise; this merely refers to regulation, which the Constitution
does not prohibit. To say that a legal provision is unconstitutional simply because it enables a
government instrumentality to determine the propriety of granting a franchise is contrary to the
government’s inherent right to exercise police power in regulating public utilities for the protection of
the public and the utilities themselves. The refusal of the local water district or the LWUA to consent
to the grant of other franchises would carry with it the legal presumption that public officers regularly
perform their official functions.

The dissenting opinion states two "reasonable and legitimate grounds" for the creation of exclusive
franchise: (1) protection of "the government’s investment,"35 and (2) avoidance of "a situation where
ruinous competition could compromise the supply of public utilities in poor and remote areas."36

There is no "reasonable and legitimate" ground to violate the Constitution. The Constitution should
never be violated by anyone. Right or wrong, the President, Congress, the Court, the BOD and the
LWUA have no choice but to follow the Constitution. Any act, however noble its intentions, is void if it
violates the Constitution. This rule is basic.

In Social Justice Society,37 the Court held that, "In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the commands of the
Constitution. Whatever limits it imposes must be observed."38 In Sabio,39 the Court held that,
"the Constitution is the highest law of the land. It is ‘the basic and paramount law to which x x
x all persons, including the highest officials of the land, must defer. No act shall be valid,
however noble its intentions, if it conflicts with the Constitution.’"40 In Bengzon v. Drilon,41 the
Court held that, "the three branches of government must discharge their respective functions within
the limits of authority conferred by the Constitution."42 In Mutuc v. Commission on Elections,43 the
Court held that, "The three departments of government in the discharge of the functions with
which it is [sic] entrusted have no choice but to yield obedience to [the
Constitution’s] commands. Whatever limits it imposes must be observed."44

Police power does not include the power to violate the Constitution. Police power is the plenary
power vested in Congress to make laws not repugnant to the Constitution. This rule is basic.

In Metropolitan Manila Development Authority v. Viron Transportation Co., Inc.,45 the Court held that,
"Police power is the plenary power vested in the legislature to make, ordain, and establish
wholesome and reasonable laws, statutes and ordinances, not repugnant to the
Constitution."46 In Carlos Superdrug Corp. v. Department of Social Welfare and Development,47 the
Court held that, police power "is ‘the power vested in the legislature by the constitution to make,
ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances x x
x not repugnant to the constitution.’"48 In Metropolitan Manila Development Authority v.
Garin,49 the Court held that, "police power, as an inherent attribute of sovereignty, is the power
vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes and ordinances x x x not repugnant to the Constitution."50

There is no question that the effect of Section 47 is the creation of franchises that are exclusive in
character. Section 47 expressly allows the BOD and the LWUA to create franchises that are
exclusive in character.

The dissenting opinion explains why the BOD and the LWUA should be allowed to create franchises
that are exclusive in character — to protect "the government’s investment" and to avoid "a situation
where ruinous competition could compromise the supply of public utilities in poor and remote areas."
The dissenting opinion declares that these are "reasonable and legitimate grounds." The dissenting
opinion also states that, "The refusal of the local water district or the LWUA to consent to the grant of
other franchises would carry with it the legal presumption that public officers regularly perform their
official functions."

When the effect of a law is unconstitutional, it is void. In Sabio,51 the Court held that, "A statute may
be declared unconstitutional because it is not within the legislative power to enact; or it creates or
establishes methods or forms that infringe constitutional principles; or its purpose or effect violates
the Constitution or its basic principles."52 The effect of Section 47 violates the Constitution, thus, it
is void.

In Strategic Alliance Development Corporation v. Radstock Securities Limited,53 the Court held that,
"This Court must perform its duty to defend and uphold the Constitution."54 In Bengzon,55 the Court
held that, "The Constitution expressly confers on the judiciary the power to maintain inviolate what it
decrees."56 In Mutuc,57 the Court held that:

The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of
any public act whether proceeding from the highest official or the lowest functionary, is a postulate of
our system of government. That is to manifest fealty to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal hierarchy. The three departments of government in the
discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to its
commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes
must ever be on guard lest the restrictions on its authority, whether substantive or formal, be
transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains.
In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to
maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass
upon the validity of the acts of the coordinate branches in the course of adjudication is a logical
corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme
law.58

Sustaining the RTC’s ruling would make a dangerous precedent. It will allow Congress to do
indirectly what it cannot do directly. In order to circumvent the constitutional prohibition on franchises
that are exclusive in character, all Congress has to do is to create a law allowing the BOD and the
LWUA to create franchises that are exclusive in character, as in the present case.

WHEREFORE, we GRANT the petition. We DECLARE Section 47 of Presidential Decree No.

198 UNCONSTITUTIONAL. We SET ASIDE the 1 October 2004 Judgment and 6 November 2004
Order of the Regional Trial Court, Judicial Region 1, Branch 62, La Trinidad, Benguet, in Civil Case
No. 03-CV-1878 and REINSTATE the 23 July 2002 Resolution and 15 August 2002 Decision of the
National Water Resources Board.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE C. MENDOZA

Associate Justice Associate Justice
 MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

RENATO C. CORONA
Chief Justice
 Republic of the Philippines
SUPREME COURT

SECOND DIVISION

G.R. No. 165842 November 29, 2005

EDUARDO P. MANUEL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 26877, affirming the Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch
3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory
portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then
previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been
legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage
with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first
marriage of said EDUARDO P. MANUEL to Rubylus [Gaña].

CONTRARY TO LAW. 3

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña
before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of
Rizal.4 He met the private complainant Tina B. Gandalera in Dagupan City sometime in January
1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years
old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio
City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina’s
resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several
occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet
Tina’s parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married
on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City,
Branch 61.5 It appeared in their marriage contract that Eduardo was "single."

The couple was happy during the first three years of their married life. Through their joint efforts,
they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999,
Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was
jobless, and whenever she asked money from Eduardo, he would slap her.6 Sometime in January
2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial
support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics
Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured
an NSO-certified copy of the marriage contract.7 She was so embarrassed and humiliated when she
learned that Eduardo was in fact already married when they exchanged their own vows.8

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a
Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his
previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital
relationship was in order until this one time when he noticed that she had a "love-bite" on her neck.
He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage
contract with Tina because he believed in good faith that his first marriage was invalid. He did not
know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to
commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter
imprisoned. He visited her in jail after three months and never saw her again. He insisted that he
married Tina believing that his first marriage was no longer valid because he had not heard from
Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable
doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10)
months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private
complainant Tina Gandalera the amount of ₱200,000.00 by way of moral damages, plus costs of
suit.9

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the
elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo’s belief,
that his first marriage had been dissolved because of his first wife’s 20-year absence, even if true,
did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the
trial court further ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy
because when he married the private complainant, he did so in good faith and without any malicious
intent. He maintained that at the time that he married the private complainant, he was of the honest
belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not
motivated by malice in marrying the private complainant because he did so only out of his
overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into
account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this
Court in United States v. Peñalosa11 and Manahan, Jr. v. Court of Appeals.12

The Office of the Solicitor General (OSG) averred that Eduardo’s defense of good faith and reliance
on the Court’s ruling in United States v. Enriquez13 were misplaced; what is applicable is Article 41 of
the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court
in Republic v. Nolasco,14 the OSG further posited that as provided in Article 41 of the Family Code,
there is a need for a judicial declaration of presumptive death of the absent spouse to enable the
present spouse to marry. Even assuming that the first marriage was void, the parties thereto should
not be permitted to judge for themselves the nullity of the marriage;
the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained,
the private complainant’s knowledge of the first marriage would not afford any relief since bigamy is
an offense against the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was
erroneous and sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as
to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of
bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply.
Before Manuel could lawfully marry the private complainant, there should have been a judicial
declaration of Gaña’s presumptive death as the absent spouse. The appellate court cited the rulings
of this Court in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support its ruling. The
dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an
indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other
respects.

SO ORDERED.17

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT
PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED

THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN
LAW.18

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e.,
that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent
spouse could not yet be presumed dead under the Civil Code. He avers that when he married
Gandalera in 1996, Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil
Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of
Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the second paragraph
refers to the rule on legal presumption of death with respect to succession.

The petitioner asserts that the presumptive death of the absent spouse arises by operation of law
upon the satisfaction of two requirements: the
specified period and the present spouse’s reasonable belief that the absentee is dead. He insists
that he was able to prove that he had not heard from his first wife since 1975 and that he had no
knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family
Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of
Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted
of the crime of bigamy.

The petitioner insists that except for the period of absences provided for in Article 390 of the Civil
Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390
of the Civil Code does it require that there must first be a judicial declaration of death before the rule
on presumptive death would apply. He further asserts that contrary to the rulings of the trial and
appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of
the Family Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in
favor of the private complainant. The private complainant was a "GRO" before he married her, and
even knew that he was already married. He genuinely loved and took care of her and gave her
financial support. He also pointed out that she had an illicit relationship with a lover whom she
brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the
petitioner’s conviction is in accord with the law, jurisprudence and the evidence on record. To bolster
its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.19

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a judgment rendered
in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será
castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage
established by law.20 The phrase "or before the absent spouse had been declared presumptively
dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised
Penal Code because the drafters of the law were of the impression that "in consonance with the civil
law which provides for the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a justification for bigamy."21

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a)
he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former
marriage having been lawfully dissolved. The felony is consummated on the celebration of the
second marriage or subsequent marriage.22 It is essential in the prosecution for bigamy that the
alleged second marriage, having all the essential requirements, would be valid were it not for the
subsistence of the first marriage.23 Viada avers that a third element of the crime is that the second
marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential
element of a felony by dolo.24 On the other hand, Cuello Calon is of the view that there are only two
elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether the first marriage is void or voidable
because such marriages have juridical effects until lawfully dissolved by a court of competent
jurisdiction.25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado v. Tan,27 under the
Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared
that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and
(3) fraudulent intention constituting the felony of the act.28 He explained that:

… This last element is not stated in Article 349, because it is undoubtedly incorporated in the
principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where
there is no willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be supported by very strong
evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person
who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead,
because of the many years that have elapsed since he has had any news of her whereabouts, in
spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is
no fraudulent intent which is one of the essential elements of the crime.29

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony
by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when
the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a
felony by dolo is classified as an intentional felony, it is deemed voluntary.30 Although the words "with
malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word
"voluntary."31

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or
justification from which another suffers injury.32 When the act or omission defined by law as a felony
is proved to have been done or committed by the accused, the law presumes it to have been
intentional.33 Indeed, it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the whole evidence.34

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and
an evil intent. Actus non facit reum, nisi mens sit rea.35

In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and
such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist.36 The
prosecution also proved that the petitioner married the private complainant in 1996, long after the
effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he married the private
complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a
prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance
of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis
neminem excusat.

It was the burden of the petitioner to prove his defense that when he married the private complainant
in 1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from her for more than 20 years since 1975.
He should have adduced in evidence a decision of a competent court declaring the presumptive
death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of
the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good
faith, and would negate criminal intent on his part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to
discharge his burden.

The phrase "or before the absent spouse has been declared presumptively dead by means of a
judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an
aggroupment of empty or useless words. The requirement for a judgment of the presumptive death
of the absent spouse is for the benefit of the spouse present, as protection from the pains and the
consequences of a second marriage, precisely because he/she could be charged and convicted of
bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12
of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social
institution." Marriage is a social institution of the highest importance. Public policy, good morals and
the interest of society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.37 The laws
regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general
welfare of the community and the parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over
transient ones; it enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving
State. On marriage, the parties assume new relations to each other and the State touching nearly on
every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent
parties and to society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the presumptive death of
the absent spouse38 after the lapse of the period provided for under the law. One such means is the
requirement of the declaration by a competent court of the presumptive death of an absent spouse
as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the
old jurists. To sustain a second marriage and to vacate a first because one of the parties believed
the other to be dead would make the existence of the marital relation determinable, not by certain
extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of
individuals.39 Only with such proof can marriage be treated as so dissolved as to permit second
marriages.40 Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage
dependent not only upon the personal belief of parties, but upon certain objective facts easily
capable of accurate judicial cognizance,41 namely, a judgment of the presumptive death of the
absent spouse.

The petitioner’s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is
misplaced.

Articles 390 and 391 of the Civil Code provide –

Art. 390. After an absence of seven years, it being unknown whether or not, the absentee still lives,
he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.
Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown
whether or not the absentee still lives, is created by law and arises without any necessity of judicial
declaration.42 However, Article 41 of the Family Code, which amended the foregoing rules on
presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Court for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.43

With the effectivity of the Family Code,44 the period of seven years under the first paragraph of
Article 390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse
present may contract a subsequent marriage, he or she must institute summary proceedings for the
declaration of the presumptive death of the absentee spouse,45 without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this Court in Armas v. Calisterio:46

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of
the contracting party must have been absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the
Family Code.

The Court rejects petitioner’s contention that the requirement of instituting a petition for declaration
of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse
present to contract a valid second marriage and not for the acquittal of one charged with bigamy.
Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and
put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities
on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for purposes of the marriage
law, it is not necessary to have the former spouse judicially declared an absentee before the spouse
present may contract a subsequent marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose the taking of the necessary
precautions for the administration of the estate of the absentee. For the celebration of civil marriage,
however, the law only requires that the former spouse had been absent for seven consecutive years
at the time of the second marriage, that the spouse present does not know his or her former spouse
to be living, that such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage.48 In In Re Szatraw,49 the Court declared that a
judicial declaration that a person is presumptively dead, because he or she had been unheard from
in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the
stage of finality or become final; and that proof of actual death of the person presumed dead being
unheard from in seven years, would have to be made in another proceeding to have such particular
fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively
dead because he or she had not been heard from in seven years cannot become final and executory
even after the lapse of the reglementary period within which an appeal may be taken, for such
presumption is still disputable and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no benefit to the petitioner. The Court stated
that it should not waste its valuable time and be made to perform a superfluous and meaningless
act.50 The Court also took note that a petition for a declaration of the presumptive death of an absent
spouse may even be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines,51 the Court declared that the words "proper proceedings" in
Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390
and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased
person. In Gue v. Republic of the Philippines,52 the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive
death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw,
Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before
the absent spouse has been declared presumptively dead by means of a judgment reached in the
proper proceedings" is erroneous and should be considered as not written. He opined that such
provision presupposes that, if the prior marriage has not been legally dissolved and the absent first
spouse has not been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true.53 A second marriage is
bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not
present.54 Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to
require judicial decree of dissolution or judicial declaration of absence but even with such decree, a
second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not
illegal, even if it be annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the
other hand, was of the view that in the case of an absent spouse who could not yet be presumed
dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in
case he/she contracts a second marriage.56

The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and
391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a
spouse is absent for the requisite period, the present spouse may contract a subsequent marriage
only after securing a judgment declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a
well-founded belief that the absent spouse was already dead.57 Such judgment is proof of the good
faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse
is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime.
As explained by former Justice Alicia Sempio-Diy:

… Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present
spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be
guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present
spouse contracting a second marriage, he or she must file a summary proceeding as provided in the
Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s
reappearance. This provision is intended to protect the present spouse from a criminal prosecution
for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the
missing spouses presumptively dead, the good faith of the present spouse in contracting a second
marriage is already established.58

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that
things are now clarified. He says judicial declaration of presumptive death is now authorized for
purposes of
remarriage. The present spouse must institute a summary proceeding for declaration of presumptive
death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits
will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full
grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice
to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause "before the absent
spouse has been declared presumptively dead x x x" should be disregarded because of Article 83,
paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding
for the declaration of the presumptive death of the absentee, otherwise, there is bigamy.59

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal
Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial
declaration of presumptive death, which could then be made only in the proceedings for the
settlement of his estate.60 Before such declaration, it was held that the remarriage of the other
spouse is bigamous even if done in good faith.61 Justice Regalado opined that there were contrary
views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which,
however, appears to have been set to rest by Article 41 of the Family Code, "which requires a
summary hearing for the declaration of presumptive death of the absent spouse before the other
spouse can remarry."

Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an
absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the
same Code.62

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral
damages in favor of the private complainant. The petitioner maintains that moral damages may be
awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of
them. The petitioner asserts that the appellate court failed to apply its ruling in People v.
Bondoc,63 where an award of moral damages for bigamy was disallowed. In any case, the petitioner
maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she
adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in
those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral
damages against the petitioner. The appellate court ruled that it is not bound by the following ruling
in People v. Bondoc:

... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo
2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de
estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta
enumeración el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los
daños de ₱5,000.00 arriba mencionados.64

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The
OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant’s wrongful act or omission.65 An award for moral damages requires the confluence of the
following conditions: first, there must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or omission factually
established; third, the wrongful act or omission of the defendant is the proximate cause of the injury
sustained by the claimant; and fourth, the award of damages is predicated on any of the cases
stated in Article 2219 or Article 2220 of the Civil Code.66

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in
Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article,
may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in
No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the
aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission
of another, otherwise, there would not have been any reason for the inclusion of specific acts in
Article 221967 and analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.)68

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which
the offender may be ordered to pay moral damages to the private complainant/offended party.
Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219
in relation to Articles 19, 20 and 21 of the Civil Code.

According to Article 19, "every person must, in the exercise of his rights and in the performance of
his act with justice, give everyone his due, and observe honesty and good faith." This provision
contains what is commonly referred to as the principle of abuse of rights, and sets certain standards
which must be observed not only in the exercise of one’s rights but also in the performance of one’s
duties. The standards are the following: act with justice; give everyone his due; and observe honesty
and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in
bad faith; and (c) for the sole intent of prejudicing or injuring another.69

Article 20 speaks of the general sanctions of all other provisions of law which do not especially
provide for its own sanction. When a right is exercised in a manner which does not conform to the
standards set forth in the said provision and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible.70 If the provision does not provide a
remedy for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code
would be proper. Article 20 provides that "every person who, contrary to law, willfully or negligently
causes damage to another shall indemnify the latter for the same." On the other hand, Article 21
provides that "any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for damages." The latter provision
is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury should
vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to prove for specifically in the statutes." Whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other
applicable provisions of law depends upon the circumstances of each case.71

In the present case, the petitioner courted the private complainant and proposed to marry her. He
assured her that he was single. He even brought his parents to the house of the private complainant
where he and his parents made the same assurance – that he was single. Thus, the private
complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he
was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all
the while that he was her lawful husband. For two years or so until the petitioner heartlessly
abandoned her, the private complainant had no inkling that he was already married to another
before they were married.
Thus, the private complainant was an innocent victim of the petitioner’s chicanery and heartless
deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day,
he maintained the appearance of being a lawful husband to the private complainant, who
changed her status from a single woman to a married woman, lost the consortium, attributes and
support of a single man she could have married lawfully and endured mental pain and humiliation,
being bound to a man who it turned out was not her lawful husband.72

The Court rules that the petitioner’s collective acts of fraud and deceit before, during and after his
marriage with the private complainant were willful, deliberate and with malice and caused injury to
the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages.
Indeed, in Morris v. Macnab,73 the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame,
humiliation, and mental anguish are not recoverable where the actor is simply negligent. See
Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize
that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural,
and proximate consequences though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p.
38. Here the defendant’s conduct was not merely negligent, but was willfully and maliciously
wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when
such result did ensue the plaintiff became entitled not only to compensatory but also to punitive
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local
24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendant’s bigamous marriage to her and the attendant
publicity she not only was embarrassed and "ashamed to go out" but "couldn’t sleep" but "couldn’t
eat," had terrific headaches" and "lost quite a lot of weight." No just basis appears for judicial
interference with the jury’s reasonable allowance of $1,000 punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955).

The Court thus declares that the petitioner’s acts are against public policy as they undermine and
subvert the family as a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioner’s perfidy, she is not barred
from claiming moral damages. Besides, even considerations of public policy would not prevent her
from recovery. As held in Jekshewitz v. Groswald:75

Where a person is induced by the fraudulent representation of another to do an act which, in

consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in
fact a criminal offense, he has a right of action against the person so inducing him for damages
sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B.
816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife, whereby the plaintiff
was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that
the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting
with him would be no bar to the action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by the promise to give the
fellowship and assistance of a wife to one who was not her husband and to assume and act in a
relation and condition that proved to be false and ignominious. Damages for such an injury were
held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339,
343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does not base her cause of action upon any
transgression of the law by herself but upon the defendant’s misrepresentation. The criminal
relations which followed, innocently on her part, were but one of the incidental results of the
defendant’s fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been
maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.)
819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec.
747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not
prevent recovery where the circumstances are such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced solely by the defendant’s misrepresentation, and that
she does not base her cause of action upon any transgression of the law by herself. Such
considerations
distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a
contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal
act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E.
251, 49 A. L. R. 958.76

Considering the attendant circumstances of the case, the Court finds the award of ₱200,000.00 for
moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of
Appeals isAFFIRMED. Costs against the petitioner.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Associate Justice

Chairman

MA. ALICIA AUSTRIA-MARTINEZ, DANTE O. TINGA

Associate Justice Associate Justice

On leave

MINITA V. CHICO-NAZARIO

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO

Associate Justice
Chairman, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairman’s Attestation, it is
hereby certified that the conclusions in the above decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice