G.R. No.

210161, January 10, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. BIENVINIDO UDANG, SR. Y

SEVILLA,1 Accused-Appellant.

DECISION

LEONEN, J.:

A single act may give rise to multiple offenses. Thus, charging an accused with rape,
under the Revised Penal Code, and with sexual abuse, under Republic Act No. 7610, in
case the offended party is a child 12 years old and above, will not violate the right of
the accused against double jeopardy.

This resolves an appeal from the October 9, 2013 Decision2 of the Court of Appeals in
CA-G.R. CR HC No. 01032 affirming the conviction of accused-appellant, Bienvinido
Udang, Sr. y Sevilla (Udang), for two (2) counts of rape defined under Article 266-A,
paragraph 1 of the Revised Penal Code.3 Udang was sentenced to suffer the penalty
of reclusion perpetua on both counts and ordered to pay the private complainant civil
indemnity, moral damages, and exemplary damages.

On December 8, 2005, two (2) Informations for child abuse were filed against Udang
before the Regional Trial Court of Cagayan de Oro City. The first was docketed as
Family Case No. 2006-140, the accusatory portion of which read:

The undersigned Prosecutor II accuses BIENVINIDO UDANG for the crime of CHILD
ABUSE, committed as follows:

That in the later of December, 2003, at more or less 9:00 o'clock in the evening, at
Lumbia, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully, feloniously
and sexually abuse one [AAA], 14 yrs. old, minor by committing the following acts, to
wit: accused together with Bienvinido Udang, Jr., Betty Udang and the offended party
dr[a]nk three (3) bottles of pocket size of [T]anduay rum in the house of the accused
and when offended party became intoxicated, accused brought and carried her inside
the room and undressed her by removing her . . . clothes and panty and accused
placed himself on top of her and have sexual intercourse with offended party herein,
which acts of the accused had clearly debased, degraded or demeaned the intrinsic
worth and dignity of the said minor as a human being.

Contrary to and in Violation of Article 266-A in relation to Sec. 5 (b) of R.A. 7610.4

The second Information, docketed as Family Case No. 2006-141, read:

The undersigned Prosecutor II accuses BIENVINIDO UDANG for the crime of CHILD
ABUSE, committed as follows:

That in the later part of September, 2002, at more or less 9:00 o'clock in the evening,
at Lumbia, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully,
feloniously, and sexually abuse one [AAA], 14 yrs. old, minor by committing the
following acts, to wit: accused together with his [daughter] Betty Udang, Renate Yana
and the offended party dr[a]nk five (5) bottles of pocket size [T]anduay rum in the
house of the accused and when offended party became intoxicated, accused brought
her inside his room, her clothings (sic) were removed and then and there accused
placed himself on top of her and have sexual intercourse with the offended party
herein, which acts of the accused had clearly debased, degraded or demeaned the
intrinsic worth and dignity of the said minor as a human being.

Contrary to and in Violation of Article 266-A in relation to Sec. 5 (b) of R.A. 7610.5

Udang pleaded not guilty to both charges during his arraignment on June 26,
2006.6 Joint trial then ensued.

Testimonies from prosecution witnesses, private complainant, AAA, and Dr. Darlene T.
Revelo (Dr. Revelo) of the Department of Obstetrics and Gynecology of the Northern
Mindanao Medical Center, Cagayan de Oro City, proved the following version of the
facts.

One evening in September 2002, AAA, then 12 years old,7 drank alcoholic beverages
with Udang's children, her neighbors: Betty Udang (Betty) and Bienvinido Udang, Jr.
(Bienvinido, Jr.), at their house in Lumbia, Cagayan de Oro City.8

After drinking five (5) bottles of Tanduay rum, AAA became intoxicated. She later
realized that she was being carried by Udang into a dark room where he laid her on the
bed, undressed her, and started kissing her.9 Udang then went on top of AAA and
inserted his penis into her vagina.10

After the incident, Udang went out to report for duty as barangay tanod while AAA
remained inside his house as she was still too weak to move.11

One (1) year and three (3) months after, in December 2003, AAA, who by then was
already 13 years old, again had some drinks at Udang's house. This time, she was with
Bienvinido, Jr. and Udang himself. When AAA felt sleepy, she went into one (1) of the
rooms inside the house.12 While AAA was lying in bed, Udang, who had followed her into
the room, went on top of her, undressed her, and inserted his penis into her vagina
until he ejaculated.13 After having sexual intercourse with AAA, Udang went out to
report for duty as barangay tanod. AAA, too tired, remained lying in bed.14

On April 14, 2004, AAA had herself physically examined by Dr. Revelo at the Northern
Mindanao Medical Center in Cagayan de Oro City. Dr. Revelo found that AAA had
hymenal lacerations in the 4, 7, and 10 o'clock positions,15 as well as "excoriations" or
reddish superficial scratched marks between her thighs and genitalia.16 According to Dr.
Revelo, these lacerations "could have been caused by trauma, frictions, infections, and
also sexual intercourse."17 Although in AAA's case, the hymenal lacerations were old
and already healed.18
The defense presented as witnesses Udang and his daughter, Betty. Monera Gandawali
(Gandawali) and Emirald Orcales (Orcales), fellow inmates of AAA at the Cagayan de
Oro City Jail, also testified in Udang's defense. Their testimonies proved the following
version of the facts.

Udang's daughter, Betty, denied drinking with AAA in September 2002. She also belied
the claim that her father, Udang, and her brother, Bienvinido, Jr., had drinks with AAA
in December 2003. However, she alleged that AAA once went to their house to invite
her to sniff some rugby, an offer which she refused. She maintained that AAA only
wanted to get back at her father for having AAA arrested after she was caught
grappling with Betty's grandmother because the latter tried to stop AAA from sniffing
rugby inside Udang's house. 19

After Udang caused the arrest of AAA for sniffing rugby,20 AAA was detained at the
Cagayan de Oro City Jail where she, Gandawali and Orcales became fellow inmates.21

Gandawali testified that sometime in 2007, she had the chance to talk to AAA when the
latter became anxious for receiving a subpoena to testify in the cases she filed against
Udang. During their conversation, AAA disclosed that she was never actually raped by
Udang and that it was actually her stepfather who wanted to implicate him.22

For her part, Orcales testified that she did not know Udang personally. She claimed that
she only knew Udang when AAA divulged her desire to write to Udang and ask for his
forgiveness. AAA likewise disclosed to Orcales that it was not Udang but a security
guard who had raped her and that it was AAA's mother who had forced her to testify
against Udang in retaliation for her arrest for sniffing rugby.23

In his defense, Udang denied ever raping AAA. He testified that he was at home with
his mother and other siblings at the time of the alleged incident in September 2002. As
for the alleged second incident in December 2003, Udang claimed that he was again at
home with his mother and siblings, Susan Udang and Cito Udang. He asserted that at
9:00 p.m., he reported for duty as barangay tanod with his colleagues, Ruel Labis and
Carlo Banianon. Udang saw no reason for AAA to falsely charge him with rape since no
animosity existed between them.24

Branch 22, Regional Trial Court, Cagayan de Oro City found for the prosecution and
convicted Udang of rape under Article 266-A(1) of the Revised Penal Code,25 instead of
sexual abuse under Section 5(b) of Republic Act No. 7610.26 It ratiocinated that while
the allegations in the first and second Informations satisfied the elements of rape under
the first and third paragraphs of Article 266-A, respectively, the charges can only be
one (1) for rape under the first paragraph of Article 266-A because "[an] accused
cannot be prosecuted twice for a single criminal act."27

The trial court found that the prosecution "indubitably established"28 Udang's act of
raping AAA since she "categorically narrated"29 how he took advantage of her while she
was intoxicated and that had she resisted his advances, she would be mauled by Betty.
That AAA was raped was also supported by Dr. Revelo's finding of hymenal lacerations
and excoriations on AAA's thighs and genitalia.30
The trial court did not give credence to Udang's defense of denial and alibi, stating that
he could have requested his family members and fellow barangay tanods, who were
allegedly with him at the time of the incidents, to corroborate his testimony but that he
failed to do so. Without the corroborating testimony of these alleged companions, his
testimony was, for the trial court, "self-serving and unworthy to be believed."31

The trial court likewise discounted Gandawali's and Orcales' testimonies for being
hearsay.32 As for Betty, the trial court found her testimony "bare"33 and "unsupported
by evidence."34

In the Regional Trial Court March 12, 2012 Joint Decision,35 Udang was sentenced to
suffer the penalty of reclusion perpetua on both counts of rape under the first
paragraph of Article 266-A of the Revised Penal Code. He was also ordered to pay AAA
civil indemnity, moral damages, and exemplary damages. The dispositive portion of this
Decision read:

WHEREFORE, the foregoing premises considered[,] judgment is hereby rendered finding

the accused BIENVINIDO UDANG y SEVILLA:

1. GUILTY beyond reasonable doubt of the crime of rape as defined and penalized

under Article 266-A, Par. 1 of the Revised Penal Code in FC-Criminal Case No. 2006-
140 and is hereby sentenced to suffer imprisonment of reclusion perpetua, and to pay
"AAA" P50,000.00 as civil indemnity, P50,000.00 as moral damages and P30,000.00 as
exemplary damages.

2. GUILTY beyond reasonable doubt of the crime of rape as defined and penalized

under Article 266-A, Par. 1 of the Revised Penal Code in FC-Criminal Case No. 2006-
141 and is hereby sentenced to suffer imprisonment of reclusion perpetua, and to pay
"AAA" P50,000.00 as civil indemnity, P50,000.000 as moral damages and P30,000.00
as exemplary damages.

SO ORDERED.36 (Emphasis in the original)

Udang appealed before the Court of Appeals, maintaining that he did not rape AAA. He
also claimed that the judge who penned the Decision, Judge Richard D. Mordeno (Judge
Mordeno), was not the judge who personally heard the witnesses testify and was not
able to observe their demeanor during trial.37 Udang argued that Judge Mordeno,
therefore, was not in the position to rule on the credibility of AAA, given her
"unbelievable story"38 of rape.

Udang emphasized that AAA's testimony was not credible for if she was allegedly raped
in his house in September 2002, she would not have gone to the same house to have
drinks with her supposed rapist a year after, in December 2003, on the risk of being
raped again.39 He highlighted AAA's ill motive against him for having caused her
detention in the Cagayan de Oro City Jail for sniffing rugby in his house.40 Finally, he
emphasized that Dr. Revelo's testimony established that the lacerations found in AAA's
genitalia could have been caused by trauma other than rape.41
In its ruling, the Court of Appeals found that although Judge Mordeno was not the one
who conducted trial, Udang's guilt was nonetheless proven beyond reasonable doubt
based on the records of the case and AAA's "categorical, convincing and consistent"
testimony. 42

That AAA returned to Udang's house a year after she was allegedly raped was, for the
Court of Appeals, not as bizarre as Udang would make it appear. The Court of Appeals
reasoned that "there is no standard form of behavior that can be expected of rape
victims after they have been defiled because people react differently to emotional
stress."43

Finally, the Court of Appeals rejected Udang's claim that AAA charged him with rape as
vengeance for her arrest for sniffing rugby. It explained that "ill motives become
inconsequential if there is an affirmative and credible declaration from the rape victim
which clearly established the liability of the accused."44

Thus, the Court of Appeals affirmed the trial court Decision in toto and dismissed
Udang's appeal in its October 9, 2013 Decision,45 the dispositive portion of which read:

WHEREFORE, premises considered, the appeal is DISMISSED. The March 12, 2012 Joint
Decision of the Regional Trial Court, 10th Judicial Region, Branch 22 of Cagayan de Oro
City in FC Criminal Case Nos. 2006-140 and 2006-141 is hereby AFFIRMED in toto.

SO ORDERED.46 (Emphasis in the original)

The case was brought on appeal before this Court through a Notice of Appeal filed on
October 23, 2013.47 In its February 26, 2014 Resolution,48 this Court directed the
parties to file their respective supplemental briefs.

In their respective manifestations, the Office of the Solicitor General,49 representing the

People of the Philippines, and accused-appellant Udang50 requested this Court to treat
their appeal briefs filed before the Court of Appeals as their appeal briefs before this
Court. This Court noted the parties' respective manifestations in its July 7, 2014
Resolution51 and the case was considered submitted for decision.

Udang denies ever raping AAA and maintains his innocence, just as he did before the
Court of Appeals. For him, AAA is not a credible witness and her story of rape is
unbelievable. He claims that AAA should not have returned to his house a year after the
alleged first incident to have drinks with him and his son, Bienvinido, Jr., had he really
raped her. He also emphasizes how the rape charges were made only after he caused
AAA's arrest for sniffing rugby in his house. He points out how two (2) of AAA's fellow
inmates in the Cagayan de Oro City Jail, Gandawali and Orcales, even attested to his
innocence based on AAA's confession that he did not rape her. Thus, the accused prays
for his acquittal.

In its Brief for the Appellee,52 the Office of the Solicitor General argues that Udang was
correctly convicted of two (2) counts of rape punished under Article 266-A(1) of the
Revised Penal Code. It claims that "testimonies of child-victims of rape are to be given
full weight and credence"53 because "a girl of tender years,"54 like AAA at the time of the
reported incidents, "is unlikely to impute to any man a crime so serious as rape, if what
she claims is not true."55 It adds that "when a woman, more so when she is a minor,
says she has been raped, she says in effect all that is required to prove the
ravishment."56

The principal issue for this Court's resolution is whether or not accused-appellant,
Bienvinido Udang, Sr. y Sevilla, was correctly convicted of rape punished under the first
paragraph of Article 266-A of the Revised Penal Code.

The appeal is affirmed with modification. Based on the Informations, Udang was
charged with two (2) counts of sexual abuse punished under Section 5(b) of Republic
Act No. 7610. Hence, he could only be convicted of sexual abuse under the
Informations filed in this case and not for rape under the Revised Penal Code.
Furthermore, upon examination of the evidence presented, this Court finds Udang guilty
of two (2) counts of sexual abuse. Thus, the penalty erroneously imposed on him—
reclusion perpetua for each count of rape—should be reduced accordingly.

Udang attempts to raise doubt in his conviction because the judge who penned the trial
court decision, Judge Mordeno, was not the judge who heard the parties and their
witnesses during trial. For Udang, Judge Mordeno was in no position to rule on the
credibility of the witnesses, specifically, of AAA, not having observed the manner by
which the witnesses testified.

Ideally, the same trial judge57 should preside over all the stages of the proceedings,
especially in cases where the conviction or acquittal of the accused mainly relies on the
credibility of the witnesses. The trial judge enjoys the opportunity to observe, first
hand, "the aids for an accurate determination"58 of the credibility of a witness "such as
the witness' deportment and manner of testifying, the witness' furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or
full realization of an oath."59

However, inevitable circumstances—the judge's death, retirement, resignation,

transfer, or removal from office—may intervene during the pendency of the case.60 An
example is the present case, where the trial judge who heard the witnesses, Judge
Francisco D. Calingin (Judge Calingin), compulsorily retired pending trial.61 Judge
Calingin was then replaced by Judge Mordeno, who proceeded with hearing the other
witnesses and writing the decision. Udang's argument cannot be accepted as this would
mean that every case where the judge had to be replaced pending decision would have
to be refiled and retried so that the judge who hears the witnesses testify and the judge
who writes the decision would be the same.62 What Udang proposes is impracticable.

As early as 1915, this Court ruled in United States v. Abreu63 that in the absence of a
law expressly prohibiting a judge from deciding a case where evidence was already
taken, no such prohibition may be implied. In Abreu, Judge Jose C. Abreu (Judge
Abreu) refused to resolve a case where the witnesses were already heard by the former
presiding judge who had resigned, arguing that the witnesses were heard by a judge
whose authority had been superseded by the then newly enacted Act No. 2347.
In rejecting Judge Abreu's argument, this Court held that the legislature could not have
intended to render void all the acts undertaken by judges prior to the enactment of Act
No. 2347.64 According to this Court, Act No. 2347's purpose was "simply to change
the personnel of the judges"65 and that it specifically provided that all cases and judicial
proceedings pending decision or sentence under the jurisdiction of the old courts shall
be continued until their final decision.66

Further, this Court explained that with the existence of the transcript of records, which
are presumed to be a "complete, authentic record of everything that transpires during
the trial,"67 there is "little reason for asserting that one qualified person may not be able
to reach a just and fair conclusion from [the] record as well as another."68 Thus, it
compelled Judge Abreu to proceed with deciding the cases where evidence was already
taken by the former presiding judge.

In People v. Court of First Instance of Quezon, Br. X,69 a decision acquitting the accused
was penned by a trial judge temporarily detailed to Branch 10 of the Court of First
Instance of Quezon. However, the decision was later on promulgated by a different
judge who was subsequently appointed permanently. The People of the Philippines then
opposed the judgment of acquittal, arguing that it was void for being promulgated
without authority as the temporary detail of the judge who penned the decision had
already expired.

This Court rejected the reasoning that "[j]urisdiction is vested in the court, not in the
judges, so that when a complaint or information is filed before one branch or judge,
jurisdiction does not attach to said branch of the judge alone, to the exclusion of the
others."70 Jurisdiction having attached with the court, the judgment of acquittal was
deemed valid, regardless of the fact that one judge wrote it and another promulgated
it.

Applying the foregoing, the trial court decision convicting Udang is valid, regardless of
the fact that the judge who heard the witnesses and the judge who wrote the decision
are different. With no showing of any irregularity in the transcript of records, it is
presumed to be a "complete, authentic record of everything that transpire[d] during the
trial,"71 sufficient for Judge Mordeno to have evaluated the credibility of the witnesses,
specifically, of AAA.

II

However, this Court disagrees with the trial court's ruling that charging Udang with
both rape, under Article 266-A(1) of the Revised Penal Code, and sexual abuse, under
Section 5(b) of Republic Act No. 7610, would violate his right against double jeopardy.

The right against double jeopardy is provided in Article III, Section 21 of the
Constitution:

Section 21. No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act.72
The first sentence of the provision speaks of "the same offense," which this Court has
interpreted to mean offenses having identical essential elements.73 Further, the right
against double jeopardy serves as a protection: first, "against a second prosecution for
the same offense after acquittal";74 second, "against a second prosecution for the same
offense after conviction";75 and, finally, "against multiple punishments for the same
offense."76

Meanwhile, the second sentence of Article III, Section 21 speaks of "the same act,"
which means that this act, punished by a law and an ordinance, may no longer be
prosecuted under either if a conviction or acquittal already resulted from a previous
prosecution involving the very same act.

For there to be double jeopardy, "a first jeopardy [must] ha[ve] attached prior to the
second; . . . the first jeopardy has been validly terminated; and ... a second jeopardy is
for the same offense as that in the first."77

A first jeopardy has attached if: first, there was a "valid indictment";78 second, this
indictment was made "before a competent court";79 third, "after [the accused's]
arraignment";80 fourth, "when a valid plea has been entered";81 and lastly, "when the
accused was acquitted or convicted, or the case was dismissed or otherwise terminated
without his express consent."82 Lack of express consent is required because the
accused's consent to dismiss the case means that he or she actively prevented the
court from proceeding to trial based on merits and rendering a judgment of conviction
or acquittal.83 In other words, there would be a waiver of the right against double
jeopardy if consent was given by the accused.84

To determine the essential elements of both crimes for the purpose of ascertaining
whether or not there is double jeopardy in this case, below is a comparison of Article
266-A of the Revised Penal Code punishing rape and Section 5(b) of Republic Act No.
7610 punishing sexual abuse:

Rape under Article 266-A(1)

of the Revised Penal Code
Article 266-A. Rape; When
and How Committed. —
Rape is committed —
1) By a man who shall have
carnal knowledge of a
woman under any of the
following circumstances:
a) Through force, threat, or
intimidation;
Sexual abuse under Section 5(b) of Republic Act No. 7610
SECTION 5. Child Prostitution and Other Sexual Abuse. —
Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of
any adult, syndicate or group, indulge m sexual intercourse or
lascivious conduct, are deemed to be children exploited m
prostitution and other sexual abuse.
The penalty of  reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the following:
....

b) When the offended party (b) Those who commit the act of sexual intercourse or
is deprived of reason or lascivious conduct with a child exploited in prostitution or
 otherwise unconscious; subjected to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall
c) By means of fraudulent be prosecuted under Article 335, paragraph 3, for rape and
machination or grave abuse Article 336 of Act No. 3815, as amended, the Revised Penal
of authority[.] Code, for rape or lascivious conduct, as the case may
  be: Provided, That the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period[.] (Underscoring
provided)

The provisions show that rape and sexual abuse are two (2) separate crimes with
distinct elements. The "force, threat, or intimidation" or deprivation of reason or
unconsciousness required in Article 266-A(1) of the Revised Penal Code is not the same
as the "coercion or influence" required in Section 5(b) of Republic Act No. 7610.
Consent is immaterial in the crime of sexual abuse because "the [mere] act of [having]
sexual intercourse . . . with a child exploited in prostitution or subjected to . . . sexual
abuse"85 is already punishable by law. However, consent exonerates an accused from a
rape charge as exhaustively explained in Malto v. People:86

VIOLATION OF SECTION 5 (B), ARTICLE III OF RA 7610 AND RAPE ARE

SEPARATE AND DISTINCT CRIMES

Petitioner was charged and convicted for violation of Section 5 (b), Article III of RA
7610, not rape. The offense for which he was convicted is punished by a special law
while rape is a felony under the Revised Penal Code. They have different elements. The
two are separate and distinct crimes. Thus, petitioner can be held liable for violation of
Section 5 (b), Article III of RA 7610 despite a finding that he did not commit rape.

CONSENT OF THE CHILD IS IMMATERIAL IN CRIMINAL CASES INVOLVING

VIOLATION OF SECTION 5, ARTICLE III OF RA 7610

Petitioner claims that AAA welcomed his kisses and touches and consented to have
sexual intercourse with him. They engaged in these acts out of mutual love and
affection. But may the "'sweetheart theory" be invoked in cases of child prostitution and
other sexual abuse prosecuted under Section 5, Article III of RA 7610? No.

The sweetheart theory applies in acts of lasciviousness and rape, felonies committed
against or without the consent of the victim. It operates on the theory that the sexual
act was consensual. It requires proof that the accused and the victim were lovers and
that she consented to the sexual relations.

For purposes of sexual intercourse and lascivious conduct in child abuse cases under RA
7610, the sweetheart defense is unacceptable. A child exploited in prostitution or
subjected to other sexual abuse cannot validly give consent to sexual intercourse with
another person.
The language of the law is clear: it seeks to punish

[t]hose who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse.

Unlike rape, therefore, consent is immaterial in cases involving violation of Section 5,

Article III of RA 7610. The mere act of having sexual intercourse or committing
lascivious conduct with a child who is exploited in prostitution or subjected to sexual
abuse constitutes the offense. It is a malum prohibitum, an evil that is proscribed.

A child cannot give consent to a contract under our civil laws. This is on the rationale
that she can easily be the victim of fraud as she is not capable of fully understanding or
knowing the nature or import of her actions. The State, as parens patriae, is under the
obligation to minimize the risk of harm to those who, because of their minority, are as
yet unable to take care of themselves fully. Those of tender years deserve its
protection.

The harm which results from a child's bad decision in a sexual encounter may be
infinitely more damaging to her than a bad business deal. Thus, the law should protect
her from the harmful consequences of her attempts at adult sexual behavior. For this
reason, a child should not be deemed to have validly consented to adult sexual activity
and to surrender herself in the act of ultimate physical intimacy under a law which
seeks to afford her special protection against abuse, exploitation and discrimination.
(Otherwise, sexual predators like petitioner will be justified, or even unwittingly
tempted by the law, to view her as fair game and vulnerable prey.) In other words, a
child is presumed by law to be incapable of giving rational consent to any lascivious act
or sexual intercourse.

This must be so if we are to be true to the constitutionally enshrined State policy to

promote the physical, moral, spiritual, intellectual and social well-being of the youth.
This is consistent with the declared policy of the State

[T]o provide special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.

as well as to

intervene on behalf of the child when the parents, guardian, teacher or person

having care or custody of the child fails or is unable to protect the child against abuse,
exploitation, and discrimination or when such acts against the child are committed
by the said parent, guardian, teacher or person having care and custody of the
same.

This is also in harmony with the foremost consideration of the child's best interests in
all actions concerning him or her.
The best interest of children shall be the paramount consideration in all
actions concerning them, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities, and legislative bodies, consistent
with the principles of First Call for Children as enunciated in the United Nations
Convention on the Rights of the Child. Every effort shall be exerted to promote the
welfare of children and enhance their opportunities for a useful and happy
life.87 (Emphasis in the original, citations omitted)

People v. Abay88 — insofar as it ruled that charging an accused with both rape, under
Article 266-A(1) of the Revised Penal Code, and sexual abuse, under Section 5(b) of
Republic Act No. 7610, violates his or her right against double jeopardy89— must
therefore be abandoned.90 As held in Nierras v. Dacuycuy:91

[A] single criminal act may give rise to a multiplicity of offenses and where there is
variance or differences between the elements of an offense in one law and another law
as in the case at bar there will be no double jeopardy because what the rule on double
jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise
stated prosecution for the same act is not prohibited. What is forbidden is prosecution
for the same offense. Hence, the mere filing of the two (2) sets of information does not
itself give rise to double jeopardy.92

In People v. Judge Relova:93

[T]he constitutional protection against double jeopardy is not available where the
second prosecution is for an offense that is different from the offense charged in the
first or prior prosecution, although both the first and second offenses may be based
upon the same act or set of acts.94

The only time that double jeopardy arises is when the same act has already been the
subject of a previous prosecution under a law or an ordinance. This is not the situation
in the present case.

All told, the trial court erred in ruling that prosecuting an accused both for rape, under
Article 266-A(1) of the Revised Penal Code, and sexual abuse, under Section 5(b) of
Republic Act No. 7610, violates his or her right to double jeopardy.

III

Moreover, contrary to the trial court's determination, the Informations actually charged
Udang with sexual abuse, under Section 5(b) of Republic Act No. 7610, and not with
rape, under Article 266-A(1) of the Revised Penal Code.

Based on the Informations, the charge against Udang was "child abuse,"95 defined in
Section 3 of Republic Act No. 7610 as "the maltreatment, whether habitual or not, of
[a] child" and includes "any act by deeds or words which debases, degrades or
demeans the intrinsic worth and dignity of a child as a human being." The allegations in
the Informations stated that Udang "sexually abuse[d]"96 AAA by having sexual
intercourse with her while she was intoxicated, thus, "debas[ing], degrad[ing], or
demean[ing] the intrinsic worth of AAA."97 While the Informations stated that the acts
were "[c]ontrary to and in [v]iolation of Article 266-A in relation to Sec. 5 (b) of R.A.
7610,"98 the factual allegations in the Informations determine the crime being
charged.99

Given that the charges against Udang were for sexual abuse, this Court examines
whether or not the elements of sexual abuse under Section 5(b) of Republic Act No.
7610 are present in this case. Section 5(b) of Republic Act No. 7610 reads:

SECTION 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of  reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:

....

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subjected to other sexual abuse; Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall be reclusion temporal in its medium period[.]

To wit, the elements of sexual abuse are: first, "the accused commits the act of sexual
intercourse or lascivious conduct";100 second, "the said act is performed with a child
exploited in prostitution";101 and, finally, that "the child, whether male or female, is
below 18 years of age."102

All the elements of sexual abuse are present in this case.

As an adult and the father of AAA's friend, Betty, Udang had influence over AAA, which
induced the latter to have drinks and later on have sexual intercourse with him. AAA,
born on May 20, 1990,103 was 12 and 13 years old when the incidents happened. The
following transcript of stenographic notes shows AAA's "categorical, convincing and
consistent"104 testimony as to how Udang sexually abused her in September 2002:

Q. In September, 2002 AAA, what unusual incident that happened between you and the
accused?
A. Yes.
Q. What is that AAA?
A. We are drinking in their house.

Q. You are saying in the house of Bienvenido Udang, Sr.?

A. Yes.
Q. Where was it located?
A. We are neighbors.
Q. So, in crossing Lumbia, Cagayan de Oro City?
A. Yes.
Q. And you said that you were drinking, what were you drinking in the house of
B[ie]nvenido Udang, Sr.?
A. Tanduay.
Q. And who were your companions, if any, at that time?
A. Betty, myself and Bienvenido, Jr.
....
Q. So, how many Tanduay bottles were you really drinking in September, 2002?
A. Five.
Q. What happened next while you were in the house of the accused?
A. They let me drink until I was drunk and carried me to the room.
Q. And when you were carried to the room, what happened next?
A. Then he undressed me.
Q. Let us clarify this, who carried you to the room?
A. Bienvenido Udang, Sr.
Q. When he carried you to the room, you said you were undressed, who undressed
you?
A. Bienvenido Udang, Sr.
Q[.] And what happened next?
A. He kissed me and then went on top of me.
Q. And when he was on top of you, what, if any, was your position then?
A. I was lying down.
Q. By the way, you said that you were undressed at that time, AAA, so at that time you
had no upper garments?
A. No more.
Q. How about your lower garment?
A. No more.
Q. How about Bienvenido Udang, Sr., what was the state of his dress?
A. I could not remember because it was already night and it was dark.
Q. When he went on top of you, what was the state of his dress at that time?
A. I did not notice.
Q. When Bienvenido Udang[,] Sr. went on top of you while you were lying down, what
was Bienvenido Udang, Sr. do[ing]?
A. I am shy.

Pros. Sia-Galvez:

We would like to manifest at this juncture, your honor, that the witness is hesitant in
answering [the] question because of the feeling of embarrassment, your honor.

(To witness) AAA, would you want your mother inside this court room or we will have
her stay outside this court room?

A. She will stay.

Q. Can we continue, AAA?
A. Yes.

....
Q. Let us go back, when Bienvenido Udang[,] Sr. was on top o[f] you and you were
lying down, what happened next?
A. He inserted his penis on my vagina.
Q. So, you felt [his] penis entering your vagina?
A. Yes.
Q. And how many times, if any, did he do that [i]n September, 2002?
A. Only once.105

As for the sexual abuse in December 2003, AAA testified:

Q. In December, 2003, AAA, what incident, if any, happened between you and the
accused?
A. Yes, there was.
Q. What incident was that?
A. The same thing, we had a drinking session with Bienvenido Udang, Sr., and Jr.
Q. And when was this happened?
A. In the house.
....
Q. You said that you were drinking in the house of the accused, what were you drinking
then?
A. Tanduay
Q. And you said it happened again, where did it happened (sic)?
A. In their house, in a room.
....
Q. And when you were inside the room, what happened next?
A. I was lying down and after a while, they went inside.
Q. You are referring to?
A. Bienvenido Udang, Sr.
Q. And when they were inside the room, what happened next?
A. The same thing, he undressed me and inserted his penis into my vagina?
Q. How many times?
A. Until he had an ejaculation.106

This Court finds AAA credible not because of the generalization that she was a child of
tender years incapable of fabricating a story of defloration but because of her
categorical narration of her experience and her straightforward explanation that she
was intimidated by Betty to have drinks with her father. Thus, she was compelled to
return to the accused's house even after she was raped. AAA testified that Betty, her
"friend," "sold"107 her to Udang; Betty, who was taller than AAA, even threatened to
"maul" her had she resisted:

Q. After the September, 2002 incident, did you tell any person about the incident?

A. No, I did not tell it to anyone because if I tell, his child will maul me.

Q. And after the said incident, you still went back to their house, is that correct?

A. Yes, because his child wanted me to go.

Q. And you were drinking Tanduay with the accused.

A. Yes, because if [I] will not drink, his child Betty will maul me. Q. Was (sic) this Betty
already mauled you? A. Yes, because whenever she asked me to buy cigarette, she
maul (sic) me because she was taller than me before.108

To this Court, Betty's threat of violence was enough to induce fear in AAA.

AAA's delay in reporting the incidents did not affect her credibility. Delay is not and
should not be an indication of a fabricated charge because, more often than not, victims
of rape and sexual abuse choose to suffer alone and "bear the ignominy and pain" of
their experience.109 Here, AAA would not have revealed the incidents had she not been
interviewed by the police when she was arrested for sniffing rugby:

Q. To whom for the first time did you reveal these two incidents that happened to you?

A. Only when Bienvenido Udang, Sr. ha[d] me arrested.

Q. Why did Bienvenido Udang, Sr. have you arrested?

A. Because his child let me used to sniff "'rugby".

Q. What is the name of that child?

A. Betty Udang.

Q. Do you mean to say that you also use "rugby"?

A. No, I am not using "rugby", but I used it for the first time when his child let me used
then (sic).

Q. Were you, in fact, being arrested (sic) at that time when Bienvenido Udang, Sr. have
you arrested?

A. Yes.

Q. Who arrested you?

A. I was arrested by the police and I told the police about the incident because I
wanted to go out but the police needed a signature in order for me to go out.

Q. Whose signature is needed?

A. Bienvenido Udang, Sr.

Q. How come those two incidents of sexual abuse by Bienvenido Udang, Sr.

A. I reported the incidents to the police because they interviewed me.110

With AAA's categorical testimony, the prosecution discharged its burden of proving
Udang's guilt beyond reasonable doubt and has made a prima facie case for two (2)
counts of sexual abuse against him. In other words, the prosecution presented the
"amount of evidence which would be sufficient to counterbalance the general
presumption of innocence, and warrant a conviction."111 The burden of evidence then
shifted to the defense to counter the prosecution's  prima facie case. Explaining the
difference between "burden of proof” and "burden of evidence," this Court in Bautista v.
Sarmiento112 said:

When a prima facie case is established by the prosecution in a criminal case . . . the

burden of proof does not shift to the defense. It remains throughout the trial with the
party upon whom it is imposed—the prosecution. It is the burden of evidence which
shifts from party to party depending upon the exigencies of the case in the course of
the trial. This burden of going forward with the evidence is met by evidence which
balances that introduced by the prosecution. Then the burden shifts back.113 (Citation
omitted)

Unfortunately Udang failed to present evidence sufficient to counter the

prosecution's prima facie case against him.

To destroy AAA's credibility, Udang capitalizes on the fact that he was charged only
after he had AAA arrested for sniffing rugby. However, given AAA's affirmative and
credible testimony, Udang's allegation of ill motive is deemed inconsequential.

While prosecution witness Dr. Revelo testified that the lacerations found in AAA's
genitalia could have been "introduced by other operation"114 aside from sexual
intercourse, Udang had nothing but denials and alibis as defenses. If, as Udang
testified, he was with his mother, siblings, and some barangay tanods during the
alleged incidents, he could have presented them as witnesses to corroborate his
testimony, but he did not. Neither is Betty's testimony that Udang never had drinks
with AAA sufficient to acquit her father. Udang's and Betty's testimonies are "self-
serving"115 and were correctly disregarded by the trial court.

As correctly held by the trial court and by the Court of Appeals, the testimonies of
Gandawali and Orcales, AAA's fellow inmates at the Cagayan de Oro City Jail, were
hearsay, hence, inadmissible in evidence.116 This is because Gandawali and Orcales had
no personal knowledge of the incidents as they were not there when the incidents
happened.

In sum, this Court is morally convinced that Udang committed two (2) counts of sexual
abuse under Section 5(b) of Republic Act No. 7610, with each count punishable
by reclusion temporal in its medium period to reclusion perpetua. Applying the
Indeterminate Sentence Law117 and absent any mitigating or aggravating circumstance
in the present case, the maximum imposable penalty for each count should be the
penalty prescribed by law in its medium period118 which is reclusion temporal in its
maximum period ranging from 17 years, four (4) months, and one (1) day to 20
years.119 On the other hand, the minimum term of the imposable penalty shall be the
next penalty lower in degree than that prescribed by law which is prision mayor in its
medium period to reclusion temporal in its minimum period. This minimum term ranges
from eight (8) years and one (1) day to 14 years and eight (8) months.120 Udang shall
serve the penalties successively.121

Further, AAA is entitled to P50,000.00 as civil indemnity.122 The award of moral

damages is likewise retained at P50,000.00.123 However, the award of exemplary
damages is deleted given the absence of any aggravating circumstance in this case.124

WHEREFORE, the appeal is DENIED. The Court of Appeals October 9, 2013 Decision
in CA-G.R. CR HC No. 01032 is AFFIRMED with MODIFICATION. Bienvinido Udang,
Sr. y Sevilla is found GUILTY beyond reasonable doubt of two (2) counts of sexual
abuse, under Section 5(b) of Republic Act No. 7610, and is sentenced to suffer the
penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years,
four (4) months, and one (1) day of reclusion temporal as maximum for each count.
Furthermore, the accused shall pay AAA P50,000.00 as civil indemnity and P50,000.00
as moral damages for each count of sexual abuse, all amounts shall earn interest at the
legal rate of six percent (6%) per annum from the finality of this Decision until full
payment. The award of exemplary damages is deleted.

SO ORDERED.

G.R. No. 184389, September 24, 2019

ALLAN MADRILEJOS, ALLAN HERNANDEZ, GLENDA GIL, AND LISA

GOKONGWEI-CHENG, PETITIONERS, v. LOURDES GATDULA, AGNES LOPEZ,
HILARION BUBAN, AND THE OFFICE OF THE CITY PROSECUTOR OF MANILA,
RESPONDENTS.

DECISION

JARDELEZA, J.:

This is a petition for prohibition with prayer for the issuance of a preliminary injunction
and/or temporary restraining order,1 seeking to prevent respondents from carrying out
the preliminary investigation of the criminal complaint entitled Abante, et al. v.
Asumbrado, et al., docketed as I.S. No. 08G-12234, on the ground that Ordinance No.
7780 is unconstitutional.

On July 7, 2008, 12 pastors and preachers from various churches filed a joint
complaint-affidavit2 against the officers and publishers of seven men's magazines and
tabloids. The complainants alleged that sometime during the period of September 2007
to July 2008, the identified magazines and tabloids, which were printed, published,
distributed, circulated, and/or sold in the City of Manila, contained material which were
"clearly scandalous, obscene, and pornographic within the meaning and in violation of
Articles 200 and 201 of the Revised Penal Code and Ordinance No. 7780 of the City of
Manila."3

Articles 200 and 201 of the Revised Penal Code (RPC) provide:
Art. 200. Grave scandal. – The penalties of arresto mayor and public censure shall be
imposed upon any person who shall offend against decency or good customs by any
highly scandalous conduct not expressly falling within any other article of this Code.

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
– The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;

2.(a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment
selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene literature
or indecent or immoral plays, scenes or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, and good customs,
established policies, lawful orders, decrees and edicts;

3. Those who shall sell, give away or exhibit films, prints, engravings, sculptures, or
literature which are offensive to morals.

The pertinent portions of Ordinance No. 7780,4 on the other hand, read as follows:

Sec. 2. Definition of Terms: As used in this ordinance, the terms:

A. Obscene shall refer to any material or act that is indecent, erotic, lewd or

offensive, or contrary to morals, good customs or religious beliefs, principles or
doctrines, or to any material or act that tends to corrupt or deprive the human mind, or
is calculated to excite impure imagination or arouse prurient interest, or is unfit
to be seen or heard, or which violates the proprieties of language or behavior,
regardless of the motive of the printer, publisher, seller, distributor, performer or
author of such act or material, such as but not limited to:

1. Printing, showing, depicting or describing sexual acts;

2. Printing, showing, depicting or describing children in sexual acts;

3. Printing, showing, depicting or describing completely nude human bodies; and

4. Printing, showing, depicting or describing the human sexual organs or the female
breasts.
B. Pornographic or pornography shall refer to such objects or subjects of
photography, movies, music records, video and VHS tapes, laser discs, billboards,
television, magazines, newspapers, tabloids, comics and live shows calculated to
excite or stimulate sexual drive or impure imagination, regardless of motive of
the author thereof, such as, but not limited to the following:

1. Performing live sexual acts in whatever form;

2. Those other than live performances showing, depicting or describing sexual acts;

3. Those showing, depicting or describing children in sex acts;

4. Those showing, depicting or describing completely nude human body, or showing,

depicting or describing the human sexual organs or the female breasts.

C. Materials shall refer to magazines, newspapers, tabloids, comics, writings,

photographs, drawings, paintings, billboards, decals, movies, music records, video and
VHS tapes, laser discs, and similar matters.

Sec. 3. Prohibited Acts The printing, publishing, distribution, circulation, sale and

exhibition of obscene and pornographic acts and materials and the production, public
showing and viewing of video and VHS tapes, laser discs, theatrical or stage and other
live performances and private showing for public consumption, whether for free or for a
fee, of pornographic pictures as herein defined are hereby prohibited within the City of
Manila and accordingly penalized as provided herein.

Sec. 4. Penalty Clause: any person violating this ordinance shall be punished as

follows:

1. For printing, publishing, distribution or circulation of obscene or

pornographic materials; the production or showing of obscene movies,
television shows, stage and other live performances; for producing or
renting obscene vidoes and VHS tapes, laser discs, for viewing obscene
movies, television shows, videos and VHS tapes, laser discs or stage and
other live performances; and for performing obscene act on stage and
other live performances – imprisonment of one (1) year or fine of five
thousand pesos (P5,000.00), or both, at the discretion of the court.
2. For the selling of obscene or pornographic materials – imprisonment of
not less than six (6) months nor more than one (1) year or a fine of not
less than one (1) thousand (P1,000.00), nor more than three thousand
(P3,000.00) pesos.

Provided, that in case the offender is a juridical person, the President and the members
of the board of directors, shall be held criminally liable; Provided, further, that in case
of conviction, all pertinent permits and licenses issued by the City of Government to the
offender shall be confiscated in favor of the City Government for destruction; Provided,
furthermore, that in case the offender is a minor and unemancipated and unable to pay
the fine, his parents or guardian shall be liable to pay such fine; provided, finally, that
this ordinance shall not apply to materials printed, distributed, exhibited, sold, filmed,
rented, viewed, or produced by reason of or in connection with or in furtherance of
science and scientific research and medical or medically related art, profession, and for
educational purposes (Emphasis supplied; underscoring in the original.)

Among those charged were petitioners Allan Madrilejos (Madrilejos), Allan Hernandez
(Hernandez), and Glenda Gil (Gil), Editor-in-Chief, Managing Editor, and Circulation
Manager, respectively, of For Him Magazine Philippines (FHM Philippines), with Lance Y.
Gokongwei and Lisa Gokongwei-Cheng, Chairman and President, respectively, of
Summit Publishing, FHM Philippines' publisher.5

On July 24, 2008, the Office of the City Prosecutor of Manila (OCP Manila) issued a
subpoena requiring petitioners to submit, within 10 days from notice, their counter-
affidavit, among others, and appear before the proper authorities to testify under oath
or answer clarificatory questions.6 On August 14, 2008, petitioners appeared before
respondent Lourdes Gatdula (Gatdula). They were informed of the creation of a panel of
prosecutors, composed of respondent Gatdula with co-respondents Agnes Lopez
(Lopez) and Hilarion Buban (Buban), to conduct the preliminary investigation in the
case. When petitioners requested for additional time within which to study the
complaint and prepare their respective counter-affidavits, preliminary investigation was
again reset to August 28, 2008.

Instead of filing their respective counter-affidavits, however, petitioners, prior to the

August 28, 2008 hearing, filed an urgent motion for bill of particulars. According to
petitioners: the joint complaint-affidavit failed to apprise them of the specific acts they
allegedly committed as to enable them to adequately and properly prepare their
counter-affidavits; since all seven publishers were charged in the same case, it would
appear that they were being charged as conspirators; yet, the specific acts supposedly
committed by petitioners in all the other publications were not indicated in the joint
complaint-affidavit with such particularity as to allow them to know and understand the
accusations against them.7 This was opposed by complainants.8

Meanwhile, on September 24, 2008, and pending the resolution of their urgent motion
for bill of particulars, petitioners filed the present action "on the ground that Ordinance
No. 7780 is invalid on its face for being patently offensive to their constitutional right to
free speech and expression, repugnant to due process and privacy rights, and violative
of the constitutionally established principle of separation of church and state."9

In their comment, respondents urged the Court to dismiss the petition on the grounds
that: (1) the petition does not allege that the OCP Manila is conducting the preliminary
investigation proceedings without or in excess of its jurisdiction; (2) criminal
prosecutions cannot be enjoined; (3) petitioners are not the proper parties to challenge
the validity of Ordinance No. 7780; and (4) Ordinance No. 7780 enjoys the presumption
of constitutionality.10

On November 11, 2013, petitioners informed the Court that the OCP Manila had already
issued a Resolution dated June 25, 2013, which dismissed the charges for violation of
Article 200 of the RPC and Ordinance No. 7780 but nevertheless ordered the filing of
criminal informations for violation of Article 201(3) of the RPC. The pertinent portion of
the Resolution reads as follows:
 xxxx

If the act or acts of the offender are punished under another article of the Revised
Penal Code, Article 200 is not applicable. Considering that the subject matter of the
complaint is the obscene publication under Article 201 of the Revised Penal Code,
[petitioners] should not be liable for Grave Scandal; hence, the complaint for Grave
Scandal should be dismissed.

On the other hand, considering that the subject matter covered by the city ordinance of
Manila is likewise the printing, publication, sale, distribution and exhibition of obscene
and pornographic acts and materials, it is already absorbed in Article 201 of the Revised
Penal Code and the complaint for violation of the city ordinance should likewise be
dismissed.

xxxx

Any person who has something to do with the printing, publication, circulation and sale
of the obscene publications should be made liable. Hence, except for respondents
Eugenio Lopez III, who was charged being the Chairman of the Board of ABS-CBN
Publishing, Inc., Ernesto M. Lopez, being the President of the said publishing company,
Lance Y. Gokongwei and Lisa Y. Gokongwei-Cheng, being the Chairman of the Board
and President, respectively of Summit Publishing, their actual knowledge, consent,
and/or participation in the obscene publications not having been clearly established by
the evidence, said respondents should not be made liable thereto. However, all the
other respondents being persons responsible for the publication, circulation and sale of
the subject obscene publications should be made liable thereto.

All the other respondents, either being the Editor-in-Chief, Managing Director, General
Manager or Circulation Manager of their respective publishing companies should be
made liable for Violation of Section 201 paragraph 2(a) of the Revised Penal Code.

x x x x11

The criminal case against petitioners for violation of Article 201(3) was docketed as
Criminal Case No. 13-30084 and assigned to Branch 16 of the Regional Trial Court
(RTC) of Manila.

Despite the dismissal of the charge for violation of Ordinance No. 7780, petitioners did
not move to withdraw the present action, adamant that the Ordinance "violates the
constitutional guarantees to free speech and expression, violates the right to due
process, and offends privacy rights."12 On April 26, 2016 and upon petitioners' motion,
Criminal Case No. 13-30084 was ordered dismissed with prejudice.13

We dismiss the petition on the following grounds:

(1) The dismissal of the criminal charges against petitioners for violation of the
provisions of Ordinance No. 778014 has rendered this case moot and academic; and
(2) Ordinance No. 7780, an anti-obscenity law, cannot be facially attacked on the
ground of overbreadth because obscenity is unprotected speech.

In light of the dismissal with prejudice of all criminal charges against petitioners, this
case has clearly been rendered moot and academic. A moot and academic case is one
that ceases to present a justiciable controversy by virtue of supervening events, so that
a declaration thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness.15 This pronouncement
traces its current roots from the express constitutional rule under paragraph 2 of
Section 1, Article VIII of the 1987 Constitution that "[j]udicial power includes the duty
of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x."16 Judicial power, in other words, must be based on
an actual justiciable controversy at whose core is the existence of a case involving
rights which are legally demandable and enforceable. Without this feature, courts have
no jurisdiction to act.17

True, exceptions to the general principle on moot and academic have been developed
and recognized through the years. At present, courts will decide cases, otherwise moot
and academic, if it feels that: (a) there is a grave violation of the Constitution; (b) the
situation is of exceptional character and paramount public interest is involved; (c) the
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and (d) the case is capable of repetition yet evading
review.18 Further discussion will bear out that none of these exceptions obtains here.

It has been advanced that a ruling, however, on the merits of the petition must still be
had under the fourth exception to the doctrine on mootness since the Ordinance
remains valid within the City of Manila, and as such, the dismissal of the criminal
charges against petitioners does not mean that no other person will be charged or
penalized under it. This is not, however, how the exception applies.

The "capable of repetition, yet evading review" exception to the mootness doctrine was
first laid down by the United States (US) Supreme Court in the 1911 case of Southern
Pacific Terminal Co. v. Interstate Commerce Commission.19 There, a challenge was
made against an Order of the Interstate Commerce Commission (ICC) prohibiting the
terminal from granting a particular shipper preferential wharfage charges. By the time
the US Supreme Court was ready to decide the case, the cease and desist order, which
had a validity period of only two years, had already expired. In rejecting the motion to
dismiss the case on the ground of mootness, the Court held that:

In the case at bar the order of the Commission may to some extent (the exact extent it
is unnecessary to define) be the basis of further proceedings. But there is a broader
consideration. The question involved in the orders of the Interstate Commerce
Commission are usually continuing (as are manifestly those in the case at bar), and
these considerations ought not to be, as they might be, defeated, by short-term orders,
capable of repetition, yet evading review, and at one time the government, and at
another time the carriers, have their rights determined by the Commission without a
chance of redress.
Southern Pacific Terminal Co. was first cited in Our jurisdiction in the 1997 case
of Alunan III v. Mirasol.20 There, the Court held that the question of "whether the
COMELEC can validly vest in the DILG the control and supervision of SK (Sangguniang
Kabataan) elections is likely to arise in connection with every SK election and yet the
question may not be decided before the date of such elections."21Alunan cited, among
other cases,22Roe v. Wade,23 where the petitioner, a pregnant woman, brought suit in
1970 to challenge the anti-abortion statutes of Texas and Georgia on the ground that
she had a constitutional right to terminate her pregnancy. Though the case was not
decided until three years later, long after the termination of petitioner's 1970
pregnancy, the US Supreme Court refused to dismiss the case as moot:

[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day
human gestation period is so short that the pregnancy will come to term before the
usual appellate process is complete. If that termination makes a case moot, pregnancy
litigation seldom will survive much beyond the trial stage, and appellate review will be
effectively denied. Our law should not be that rigid. Pregnancy often comes more than
once to the same woman, and in the general population, if man is to survive, it will
always be with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading review."24

Over the years, however, the US Supreme Court has increasingly limited the application
of the "capable of repetition, yet evading review" exception. Beginning in the 1975 case
of Sosna v. Iowa,25 a class action challenging the Iowa durational residency requirement
for divorce, the US Supreme Court held:

In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), where a challenged ICC
order had expired, and in Moore v. Ogilvie, 394 U. S. 814 (1969), where petitioners
sought to be certified as candidates in an election that had already been held, the Court
expressed its concern that the defendants in those cases could be expected again to act
contrary to the rights asserted by the particular named plaintiffs involved, and in each
case the controversy was held not to be moot because the questions presented were
"capable of repetition, yet evading review.'' That situation is not presented in
appellant's case, for the durational residency requirement enforced by Iowa does not at
this time bar her from the Iowa courts. Unless we were to speculate that she may move
from Iowa, only to return and later seek a divorce within one year from her return, the
concerns that prompted this Court's holdings in Southern Pacific and Moore do not
govern appellant's situation. But even though appellees in this proceeding might
not again enforce the Iowa durational residency requirement against
appellant, it is clear that they will enforce it against those persons in the class
that appellant sought to represent and that the District Court certified. In this
sense the case before us is one in which state officials will undoubtedly
continue to enforce the challenged statute and yet, because of the passage of
time, no single challenger will remain subject to its restrictions for the period
necessary to see such a lawsuit to its conclusion. 26 (Emphasis and underscoring
supplied.)

In the subsequent case of Weinstein, et al. v. Bradford,27 the US Supreme Court

rejected a plea to resolve an issue alleged to be "capable of repetition, yet evading
review."28 The Court found that the suit did not involve a class action—as in fact the
District Court refused Bradford's earlier motion to have it declared as such—and that
there is no demonstrated probability that Bradford will again be subjected to the parole
system. Thus, following Sosna, "the capable of repetition, yet evading review"
exception was limited to the situation where two elements must concur:

(1) the challenged action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there was a reasonable expectation that
the same complaining party would be subjected to the same action again. The
instant case, not a class action, clearly does not satisfy the latter element. While
petitioners will continue to administer the North Carolina parole system with respect to
those who at any given moment are subject to their jurisdiction, there is no
demonstrated probability that respondent will again be among that
number.29 (Emphasis supplied.)

The requirement that these two elements must concur has continuously been reiterated
in a number of later US cases.30

We would also adopt the two-requirement rule in this jurisdiction, beginning with
Justice Brion's Concurring and Dissenting Opinion in the En Banc Decision in Province of
North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP)31 Dissenting, Justice Brion wrote:

Finally, let me clarify that the likelihood that a matter will be repeated does not mean
that there will be no meaningful opportunity for judicial review so that an exception to
mootness should be recognized. For a case to dodge dismissal for mootness under the
"capable of repetition yet evading review" exception, two requisites must be satisfied:
(1) the duration of the challenged action must be too short to be fully litigated prior to
its cessation or expiration; and (2) there must be reasonable expectation that the same
complaining party will be subjected to the same action again.

The time constraint that justified Roe v. Wade, to be sure, does not inherently exist
under the circumstances of the present petition so that judicial review will be evaded in
a future litigation. As this Court has shown in this case, we can respond as fast as the
circumstances require. I see nothing that would bar us from making a concrete ruling in
the future should the exercise of our judicial power, particularly the exercise of the
power of judicial review, be justified.32 (Citations omitted.)

Two years later, the Court En Banc would categorically adopt th two-requirement rule
in Pormento v. Estrada,33 to wit:

While there are exceptions to this rule, none of the exceptions applies in this
case. What may most probably come to mind is the "capable of repetition yet
evading review" exception. However, the said exception applies only where
the following two circumstances concur: (1) the challenged action is in its
duration too short to be fully litigated prior to its cessation or expiration and
(2) there is a reasonable expectation that the same complaining party would
be subjected to the same action again. The second of these requirements is
absent in this case. It is highly speculative and hypothetical that petitioner would be
subjected to the same action again. It is highly doubtful if he can demonstrate a
substantial likelihood that he will "suffer a harm" alleged in his petition.34 (Emphasis
supplied.)
This ruling in Pormento would be affirmed in the later cases of International Service for
the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines)35 and Philippine Association of Detective and Protective Agency Operators
v. COMELEC.36

What has developed and prevailed over time, therefore, is a consensus that the
"capable of repetition, yet evading review" exception to mootness is not meant to be
applied literally. In the cases where the exception was correctly applied, time constraint
was a significant factor. As the US Supreme Court would later caution in Murphy v.
Hunt,37 a mere physical or theoretical possibility was never sufficient to satisfy the test
stated in Weinstein.38 If this were true, virtually any matter of short duration would be
reviewable.39 There must be a "reasonable expectation" or a "demonstrated probability"
that the same controversy will recur involving the same complaining party.40

To employ the exception here would be to disregard the two-requirement rule laid down
in Weinstein. The often cited cases of David v. Macapagal-Arroyo41 and Belgica v.
Ochoa, Jr.42 also do not find application because the circumstances in these cases differ
from the circumstances here.

First. David involved suits challenging Proclamation No. 1017 and General Order No. 5
issued by then President Gloria Macapagal-Arroyo declaring a state of national
emergency and calling out the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP) to prevent and suppress acts of terrorism and lawless violence in
the country. Despite the lifting of said state of emergency one week later, the Court
refused to dismiss the case and justified its assumption of jurisdiction over the matter
as follows:

The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.

All the foregoing exceptions are present here and justify this Court's
assumption of jurisdiction over the instant petitions. Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that
the issues being raised affect the public's interest, involving as they do the people's
basic rights to freedom of expression, of assembly and of the press. Moreover, the
Court has the duty to formulate guiding and controlling constitutional precepts,
doctrines or rules. It has the symbolic function of educating the bench and the bar, and
in the present petitions, the military and the police, on the extent of the protection
given by constitutional guarantees. And lastly, respondents' contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.43

As observed by Justice Brion, David properly applied the principle owing to the history

of "emergencies" which had attended the administration of President Macapagal-Arroyo
since she assumed office. Given such history, it was not far-fetched for the then
President to again make a similar declaration in the future, or to possibly "act contrary
to the rights asserted by the particular named plaintiffs involved."44

In Belgica, on the other hand, the Court rejected the view that th constitutionality
issues related to the assailed Priority Development Assistance Fund (PDAF) in the 2013
General Appropriations Act had been rendered moot and academic by the reforms
undertaken by the Executive Department and former President Benigno Simeon S.
Aquino III's declaration that he had already "abolished the PDAF."45 The Court held that
the application of the "capable of repetition, yet evading review" exception was called
for because the preparation and passage of the national budget is, by constitutional
imprimatur, an affair of annual occurence:

The relevance of the issues before the Court does not cease with the passage of a PDAF
free budget for 2014. The evolution of the "Pork Barrel System," by its multifarious
iterations throughout the course of history, lends a semblance of truth to petitioners'
claim that "the same dog will just resurface wearing a different collar." In Sanlakas v.
Executive Secretary, the government had already backtracked on a previous course of
action yet the Court used the "capable of repetition but evading review" exception in
order "to prevent similar questions from re-emerging." The situation similarly holds true
to these cases. Indeed, the myriad of issues underlying the manner in which certain
public funds are spent, if not resolved at this most opportune time, are capable of
repetition and hence, must not evade judicial review.46

In this case, it must be noted that petitioners' purpose in filing the present action was
to stop the conduct of the preliminary investigation into their alleged violation of an
unconstitutional statute—a process that concludes with an Order whether or not to
indict petitioners. Relatedly, and as it happened in this case, such an Order, if and when
issued, is not of such inherently short duration that it will lapse before petitioners are
able to see it challenged before a higher prosecutorial authority (i.e., the Department of
Justice) or the courts. In fact, and unless reversed by the Secretary of Justice or by the
courts, an order to indict does not lapse. Thus, the time constraint that justified the
application of the exception in Southern Pacific Terminal Co. (two-year validity of an
ICC cease and desist order) and Roe (266-day human gestation period) does not exist
here.47

Furthermore, when the criminal charges against petitioners were dismissed with
prejudice, they can no longer be refiled without offending the constitutional proscription
against double jeopardy. Petitioners have also failed to demonstrate a reasonable
likelihood that they will once again be hailed before the OCP Manila for the same or
another violation of Ordinance No. 7780.48 It should be noted that the OCP Manila did
not even question the dismissal of the case. There is likewise no showing that the
pastors and preachers who initiated the complaint here filed, or have threatened to
file, new charges against petitioners, over new material published in FHM Philippines
alleged to be obscene, after the case below was dismissed as early as July 19, 2016.49

II

Even granting, for the sake of argument, that petitioners' case has not been mooted by
the dismissal of the charge for violation of Ordinance No. 7780 against them, they have
still failed to establish a cause of action to warrant a ruling in their favor.
 A

Petitioners challenge the constitutionality of Ordinance No. 7780, alleging that it defines
the terms "obscene" and "pornography" in such a way that a very broad range of
speech and expression are placed beyond the protection of the Constitution, thus
violating the constitutional guarantee to free speech and expression.50 Specifically,
petitioners take issue with the "expansive" language of Ordinance No. 7780 which,
petitioners claim, paved the way for complainants, a group of pastors and preachers, to
impose their view of what is "unfit to be seen or heard" and "violate[s] the proprieties
of language and behavior."51

Petitioners' arguments are facial attacks against Ordinance No. 7780 on the ground of
overbreadth. As will be shown, however, the overbreadth doctrine finds special and
limited application only to free speech cases. The present petition does not involve
a free speech case; it stemmed, rather, from an obscenity prosecution. As both
this Court and the US Supreme Court have consistently held, obscenity is not protected
speech. No court has recognized a fundamental right to create, sell, or distribute
obscene material. Thus, a facial overbreadth challenge is improper as against an anti-
obscenity statute.

Associate Justice Vicente V. Mendoza explained in his Separate Opinion in Estrada v.

Sandiganbayan52 why a facial overbreadth challenge is limited to cases involving
protected speech:

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a
statute drawn with narrow specificity." The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented
from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to
free speech cases. They are inapt for testing the validity of penal statutes. As
the US Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct." For this reason, it has been held that "a
facial challenge to a legislative Act is ... the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid." x x x

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be taken as
applying to other persons or other situations in which its application might be
unconstitutional."53 x x x (Emphasis supplied.)

Justice Mendoza's Opinion has since become the controlling rule in cases where the
validity of criminal statutes is challenged on the ground of vagueness or overbreadth.
Quoting it at length, this Court in Romualdez v. Sandiganbayan54 held that:

[A]n "on-its-face" invalidation of criminal statutes would result in a mass acquittal of

parties whose cases may not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no factual
concreteness.

xxxx

For this reason, generally disfavored is an on-its-face invalidation of statutes, described

as a "manifestly strong medicine" to be employed "sparingly and only as a last resort."
In determining the constitutionality of a statute, therefore, its provisions that have
allegedly been violated must be examined in the light of the conduct with which the
defendant has been charged.55

In Romualdez v. Comelec,56 the Court again relied on the Opinion of Justice Mendoza

in Estrada, reaffirming that it remains good law:

The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes maybe
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and concrete
controversy before judicial power may be appropriately exercised. A facial challenge
against a penal statute is, at best, amorphous and speculative. It would, essentially,
force the court to consider third parties who are not before it.57

B
Ordinance No. 7780 is a local legislation which criminalizes obscenity. Obscenity is
unprotected speech. This rule is doctrinal both her and in the US.

It was in 1942 when the US Supreme Court first held in the landmark case
of Chaplinsky v. New Hampshire58 that the lewd and the obscene are not protected
speech and therefore falls outside the protection of the First Amendment, thus:

Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all
times and under all circumstances. There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words — those which, by their very
utterance inflict injury or tend to incite an immediate breach of the peace. It has been
well observed that such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality.

Beginning from Roth v. United States59 (implicit in the history of the First Amendment is

the rejection of obscenity) to Miller v. California,60 (this much has been categorically
settled by the Court, that obscene material is unprotected by the First Amendment),
the US Supreme Court has invariably held that obscene materials do not come under
the protection of the First Amendment. This doctrine continues to be valid to this day,
as exemplified in the later case of New York v. Ferber,61 where the US Supreme Court
noted that "[i]n Chaplinsky[,] x x x the Court laid the foundation for the excision of
obscenity from the realm of constitutionally protected expression." In Ferber, the Court
not only upheld the constitutionality of the child pornography statute of New York, it
also allowed the States greater leeway in the regulation of pornographic depictions of
children by essentially holding that the test for child pornography is lower than the
obscenity standard enunciated in Miller.62

As earlier stated, this Court has long accepted Chaplinsky's analysis that obscenity is

unprotected speech. In 1985, We held, in the case of Gonzalez v. Katigbak,63 that the
law on freedom of expression frowns on obscenity and rightly so.64 The Court quoted
with approval Roth v. United States,65 which, in turn, cited Chaplinsky:

All ideas having even the slightest redeeming social importance—unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full
protection of the guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the First
Amendment is the rejection of obscenity as utterly without redeeming social
importance. This rejection for that reason is mirrored in the universal judgment that
obscenity should be restrained, reflected in the international agreement of over 50
nations, in the obscenity laws of all of the 48 States, and in the 20 obscenity laws
enacted by the Congress from 1842 to 1956.66

In Pita v. Court of Appeals,67 the Court declared that "[u]ndoubtedly, 'immoral' lore or

literature comes within the ambit of expression, although not its
protection."68 In Soriano v. Laguardia,69 the Court reiterated that:
Indeed, as noted in Chaplinsky v. State of New Hampshire, "there are certain well-
defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems." In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the
freedom of speech clause. A speech would fall under the unprotected type if the
utterances involved are "no essential part of any exposition of ideas, and are of such
slight social value as a step of truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality." Being of little or no
value, there is, in dealing with or regulating them, no imperative call for the application
of the clear and present danger rule or the balancing-of-interest test, they being
essentially modes of weighing competing values, or, with like effect, determining which
of the clashing interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or
pornography, false or misleading advertisement, insulting or "fighting words," i.e.,
those which by their very utterance inflict injury or tend to incite an immediate breach
of peace and expression endangering national security.70 (Emphasis supplied.)

As this Court has recognized, laws that regulate or proscribe classes of speech falling
beyond the ambit of constitutional protection cannot, therefore, be subject to facial
invalidation because there is no "transcendent value to all society" that would justify
such attack.71

This is not to suggest, however, that these laws are absolutely invulnerable to
constitutional attack.

A litigant who stands charged under a law that regulates unprotected speech can still
mount a challenge that a statute is unconstitutional as it is applied to him or her. In
such a case, courts are left to examine the provisions of the law allegedly violated in
light of the conduct with which the litigant has been charged.72 If the litigant prevails,
the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis.73

Under the circumstances, the proper recourse for petitioners would have been to go to
trial to allow the RTC, as the trier of fact, to judicially determine whether the materials
complained of as obscene were indeed proscribed under the language of Ordinance No.
7780. As part of their defense, petitioners can probably argue for the adoption of
the Miller standards, which requires the trier of fact to ascertain:

(a) whether "the average person, applying contemporary community standards" would
find that the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.74
Thereafter, petitioners can argue that, applying said standards to the specific material
over which they were being prosecuted, they should be acquitted.

On the other hand, the trial court, assuming it adopts Miller, will then have to receive
evidence and render opinion on such issues as to: (a) who is the "average" Filipino; (b)
what is the "community" against which "contemporary standards" are to be measured;
(c) whether the subject material appeals to the "prurient" interest; (d) whether the
material depicts "patently offensive" sexual conduct; and (e) whether the material
"taken as a whole" has serious value.

The decision of the RTC, whether or not in favor of petitioners, may then be brought up
on appeal to the Court of Appeals (CA), whose decision may later on be brought to this
Court for review. Such is the process observed by the US Supreme Court in all of the
obscenity cases cited by the ponencia which led to the adoption of the Miller standards
in the US. The cases, including Miller, all involved appellate review conducted with the
benefit of a full record. To stress, none of those cases involved a facial attack of the
challenged government regulation on the ground of overbreadth.

Hence, to grant the petition would be to declare Ordinance No. 7780 (and by
implication Article 201[3] of the RPC)75 unconstitutional in a complete vacuum. To
recall, petitioners were charged for selling or printing alleged obscene materials
appearing in 14 pages from four different issues of their magazines. While allegedly
marked as annexes of the joint complaint-affidavit, it does not even appear, however,
that said pages were attached by petitioners as annexes to their petition. There would
thus be no basis even for this Court to rule on the constitutionality of the Ordinance as
applied to petitioners.

Indeed, the process We suggest here may take longer to resolve than a direct recourse
to this Court on an overbreadth challenge. Nevertheless, such is the process required of
Us by the Constitution. We must be mindful that the power of judicial review is not
boundless; it is limited by the actual case and controversy requirement and the
hierarchy of courts.

Equally important, under the separation of powers ordained by the Constitution, this
Court is vested only with judicial power, legislative power being entrusted exclusively
with the Congress. Were We to declare Ordinance No. 7780 unconstitutional in this
case, and impose the Miller standards on Congress and the City of Manila, We may be
faulted (and not without reason) for engaging in judicial legislation.

We stress at this point that the Court in Miller did not impose that the standards it laid
down be legislated. On the contrary, the Court there was very careful not to overstep
its judicial boundaries:

We emphasize that it is not our function to propose regulatory schemes for the
States. That must await their concrete legislative efforts. It is possible,
however, to give a few plain examples of what a state statute could define for
regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or

perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals.76 (Emphasis supplied.)

In fact, Miller explicitly held that the obscene conduct depicted or described in materials

which is sought to be regulated "must be specifically defined by the applicable state
law, as written or authoritatively construed." The Court in Miller, through Chief Justice
Burger, added that it was not holding, "as Mr. Justice Brennan intimates, that all States
other than Oregon must now enact new obscenity statutes. Other existing state
statutes, as construed heretofore or hereafter, may well be adequate." Indeed, it does
not appear that US Federal laws on obscenity have been amended subsequent to the
promulgation of Miller to suit or reflect said Decision's exact language.77 Accordingly,
whether a material is obscene or not is still for the Court to decide as it applies or
construes a specific statute in a particular case.

Finally, the path followed by the Court in adopting the "actual malice" rule in libel law is
instructive. In 1964, the US Supreme Court laid down its precedential ruling in the case
of New York Times v. Sullivan.78 There, the US Court held that a public official may not
successfully sue for libel unless the official can prove actual malice, which was defined
as with knowledge that the statement was false or with reckless disregard as to
whether or not it was true.

The Philippines eventually adopted the New York Times rule, but only after an actual
case involving a criminal prosecution for libel is presented to the Court under the
regular appeals process. Such an opportunity presented itself in 1999 when the Court,
thru Associate Justice Vicente V. Mendoza,79 categorically adopted the New York
Times rule as applied to the actual facts of the case and as part of the Decision's ratio
decidendi. This is the proper precedent to follow if the Court were to consider adopting
the Miller standard in our jurisdiction. Thus, and until the proper case presents itself,
prudence dictates that the Court should exercise judicial restraint.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

[ G.R. No. 208162, January 07, 2020 ]

DEVIE ANN ISAGA FUERTES, PETITIONER, VS. THE SENATE OF PHILIPPINES, HOUSE REPRESENTATIVES,
THE OF DEPARTMENT OF JUSTICE (DOJ), DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT
(DILG), DEPARTMENT OF BUDGET AND MANAGEMENT, DEPARTMENT OF FINANCE, PEOPLE OF THE
PHILIPPINES, THROUGH THE OFFICE OF THE SOLICITOR GENERAL (OSG), OFFICE OF THE CITY
PROSECUTOR OF TAYABAS CITY (QUEZON PROVINCE), THE PRESIDING JUDGE OF BRANCH 30,
REGIONAL TRIAL COURT (RTC) OF LUCENA CITY, AND HEIRS OF CHESTER PAOLO ABRACIA,
RESPONDENT.

DECISION

LEONEN, J.:
Section 14 , paragraph 4 of the Anti-Hazing Law,1 which provides that an accused's presence during a
hazing is prima facie evidence of his or her participation, does not violate the constitutional presumption
of innocence. This disputable presumption is also not a bill of attainder.

This Court resolves a Petition for Certiorari2 seeking to declare unconstitutional Sections 5 and 14 of the
Anti-Hazing Law— specifically, paragraph 4 of Section 14. The paragraph provides that one's presence
during the hazing is prima facie evidence of participation as a principal, unless proven to have prevented
or to have promptly reported the punishable acts to law enforcement authorities if they can, without
peril to their person or their family.

Devie Ann Isaga Fuertes (Fuertes) is among the 46 accused in Criminal Case No. 2008-895, pending
before Branch 30 of the Regional Trial Court of San Pablo City.3 She and her co-accused had been
charged with violating the Anti-Hazing Law, or Republic Act No. 8049, for the death of Chester Paolo
Abracia (Abracia) due to injuries he allegedly sustained during the initiation rites of the Tau Gamma Phi
Fraternity.4 Fuertes is a member of the fraternity's sister sorority, Tau Gamma Sigma, and was allegedly
present at the premises during the initiation rites.5

Abracia died on or about August 2, 2008 in Tayabas City, Quezon. An Information was filed on October
20, 2008, charging the 46 members of Tau Gamma Phi and Tau Gamma Sigma for violation of Republic
Act No. 8049.

The pertinent portion of the Information read: 

That on or about the 2nd day of August 2008, at Barangay Mate, in the City of Tayabas, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all
active members of Tau Gamma Phi Fraternity and Tau Gamma Sigma Sorority, acting conspiracy with
one another, without prior written notice to the proper school authorities of Manuel S. Enverga
University Foundation, Inc. (MSEUF) made seven (7) days prior to aforementioned date and in the
absence of the school's assigned representatives during the initiation perform and conduct initiation rite
on the person of neophyte and herein deceased victim Chester Paolo Abracia as a prerequisite for his
admission into membership in the said fraternity by hazing accomplished through subjection to physical
suffering or injury, to wit: by successively hitting his body, using paddle and fist blows, thereby
[inflicting] upon him contusion and abrasion located on his chest, abdomen, leg and thigh which resulted
to cardio-respiratory arrest secondary to pulmonary embolism and acute myocardial infarction which is
the direct and immediate cause of his death thereafter.  

That the hazing was committed in the property of Lamberto Villarion O. Pandy situated at Barangay
Mate, Tayabas City, a place outside the school premises of Manuel S. Enverga University Foundation,
Inc. (MSEUF).  

That accused Lamberto Villarion O. Pandy, as owner of the place where the hazing was conducted, acted
as accomplice by cooperating in the execution of the offense by failing to take action to prevent the
same from happening despite actual knowledge that it will be conducted therein.

CONTRARY TO LAW. Tayabas City for Lucena City, Philippines, October 20, 2008.6
Fuertes, a member of Tau Gamma Sigma Sorority, admitted that she was at the premises during the
initiation rites. She was then 17 years old and was a student of Manuel S. Enverga University
Foundation.7  

The case was docketed as Criminal Case No. 2008-895, and was initially pending with Branch 54 of the
Regional Trial Court of Lucena City. The case was transferred to Branch 30 of the Regional Trial Court of
San Pablo City, pursuant to A.M. No. 10-7-224-RTC issued by this Court in July 2010.8

On August 1, 2013, Fuertes filed a Petition for Certiorari9 before this Court, raising the sole issue of the
unconstitutionality of Sections 3 and 4 of the Anti-Hazing Law. At the time, she had not yet been
arraigned and was at large.10  

Petitioner claims that Sections 3 and 4 of the Anti-Hazing Law are unconstitutional, as they would allow
for the conviction of persons for a crime committed by others, in violation of the res inter alios acta rule.
She also argues that these provisions violate Article III, Sections 1 and 19 of the Constitution for
constituting a cruel and unusual punishment, as she was charged as a principal, and penalized
with reclusion perpetua, for a non-bailable offense.11  

On August 6, 2013, this Court issued a Resolution12 requiring respondents to comment on the Petition.

On November 5, 2013, public respondents filed their Comment,13 arguing that the Petition was
procedurally and substantially erroneous,14 for a multitude of reasons.

First, since petitioner assails the constitutionality of law provisions, public respondents argue that her
Petition is one of declaratory relief, over which this Court has no original jurisdiction15 Further, they
argue that declaratory relief is not the proper remedy, as there had already been a breach of the Anti-
Hazing Law.16

Second, public respondents claim that petitioner is not entitled to equitable relief, as she has come to
com 1with unclean hands,17 having evaded arrest for five (5) years since being charged. They claim that,
while government resources are directed for her arrest, she has remained a fugitive from justice, able to
exercise her civil rights.18 They pointed out that on September 6, 2010, she obtained a Philippine
passport from the Philippine Embassy in Brunei, and a postal identification card in Pasay in May 2013.19 
She also verified the Petition before Atty. Manny V. Gragasin at the Quezon City Hall. Her counsel, Atty.
Vicente D. Millora, appears to be in constant contact with her, but has not facilitated her surrender to
the authorities.20  

Third, public respondents argue that even if the Rules of Court were applied liberally, petitioner has still
failed to overturn the presumption of constitutionality of Sections 3 and 4 of the Anti-Hazing Law. They
claim that the presumption in Section 4— that the presence of persons during the hazing is prima
facie evidence of participation, unless they prevented the commission of the punishable acts—is
consistent with Sections 1, 14, and 19 of the Constitution.21  They argue that several penal laws allow
for prima facie evidence, all of which do not preclude the constitutional presumption of innocence. They
also point out that this Court itself recognizes disputable presumptions, as in Rules of Court, Rule 131,
Section 3.22
Moreover, public respondents claim that certain laws, such as the Revised Penal Code, Article 275,
penalize presence and inaction.23 They cited People v. Mingoa24 and Bautista v. Court of Appeals.25 in
which this Court upheld disputable presumptions in criminal law. 26  

Fourth, public respondents argue that there is no violation of the res inter alios acta rule, because under
the assailed law, there must still be a finding of actual participation before a person may be held
criminally liable.27  

Fifth, public respondents claim that the penalty of reclusion perpetua that will be imposed is not cruel
and unusual punishment. They argue that; consistent with Furman v. Georgia 28 and Perez v.
People,29 penalties such as life imprisonment and even death may be imposed to discourage crimes
harmful to public interest.30 As for the Anti-Hazing Law itself, reclusion perpetua is only imposable on
the actual participants in the hazing, and only when the hazing results in death, rape, sodomy, or
mutilation.31  

Sixth, public respondents argue that the provision on prima facie evidence in the Anti-Hazing Law is a
legislative decision that this Court must respect in view of the doctrine of separation of powers.32 They
raise that the presumption was put in place in view of the legislative policy to discourage fraternities,
sororities, organizations, or associations from making hazing a requirement for admission.33  

Finally, public respondents argue that petitioner's minority and right to bail are matters better left to the
judgment of the trial court.34

On November 19, 2013, this Court issued a Resolution35 noting the Comment, and requiring petitioner
to file a Reply.  

On January 8, 2014, Fuertes filed her Reply36 to the Comment. On January 21, 2014, this Court issued a
Resolution37 noting the Reply. This Court also gave due course to the Petition, treated the Comment as
Answer, and required the parties to submit their memoranda.  

On April 21, 2014, public respondents filed a Manifestation,38 praying that their Comment be
considered their Memorandum.  

On April 23, 2014, petitioner filed her Memorandum,39 arguing that while the Information charges all
members of Tau Gamma Phi and Tau Gamma Sigma as principals and conspirators for Abracia's death, it
failed to allege that all the accused actually participated in the hazing.40  

She insists that Sections 3 and 4 of the Anti-Hazing Law violate Sections 1, 14, and 22 of the Constitution.
She claims that the Anti-Hazing Law presumes that there is a conspiracy to commit murder or homicide.
Further, the Anti-Hazing Law treats persons as principals or co-conspirators simply because of their
presence at an initiation rite, or while they are an active member of the fraternity or sorority, even if
one did not know, or actually participate, in the act that caused the crime charged.41 She argues that
she and other members of Tau Gamma Sigma should not have been charged, there being no showing
that they knew, or actually participated in the hazing which led to the death of Abracia.42  

Petitioner argues that conspiracy must be proved beyond reasonable doubt, and a mere presumption
cannot be the basis to file an information for murder 43  
She likewise claims that Sections 3 and 4 are a bill of attainder44 — a legislative act declaring persons
guilty of a crime without judicial trial— because they treat members of a particular group as principals
or co-conspirators, even if they have no actual knowledge or participation in the act.45 She argues that
in imposing these provisions, Congress has arrogated judicial power upon itself, since the determination
of the degree of participation in a crime is a judicial, and not legislative, function.46  

Finally, petitioner argues that the procedural errors assigned by public respondent deserve scant
consideration, and that this Court should set aside technical defects when there is a violation of the
Constitution.47  

On June 3, 2014, this Court issued a Resolution48 noting public respondents' Manifestation and
petitioner's Memorandum.  

In 2018, the Anti-Hazing Law was amended by Republic Act No. 11053. The law now prohibits all forms
of hazing in "fraternities, sororities, and organizations in schools, including citizens' military training and
citizens' army training[,]" as well as "all other fraternities, sororities, and organizations that are not
school-based, such as community-based and other similar fraternities, sororities, and
organizations."49 Among the changes were the renumbering of Sections 3 and 4 to Sections 5 and 14,
respectively, and their amendments. Section 5 of the Anti-Hazing Law now reads: 

SECTION 5. Monitoring of Initiation Rites. - The head of the school or an authorized representative must
assign at least two (2) representatives of the school to be present during the initiation. It is the duty of
the school representatives to see to it that no hazing is conducted during the initiation rites, and to
document the entire proceedings. Thereafter, said representatives who were present during the
initiation shall make a report of the initiation rites to the appropriate officials of the school regarding the
conduct of the said initiation : Provided, That if hazing is still committed despite their presence, no
liability shall attach to them unless it is proven that they failed to perform an overt act to prevent or
stop the commission thereof.

The pertinent paragraph of Section 14 was amended to include the additional defense of prompt
reporting of the hazing to law enforcement authorities:  

The presence of any person, even if such person is not a member of the fraternity, sorority, or
organization, during the hazing is prima facie evidence of participation therein as a principal unless such
person or persons prevented the commission of the acts punishable herein or promptly reported the
same to the law enforcement authorities  if they can do so without peril to their person or their
family. (Emphasis supplied)

Moreover, under Section 14, when death occurs during the hazing, the penalty imposed on principals
who participated in it was increased from just reclusion perpetua to reclusion perpetua and a P3-million
fine.  

Accordingly, this Court required the parties to move in the premises as to whether the law's passage
affects this case.50  

To public respondents, the passage of Republic Act No. 11053 did not render this case moot.51 They
point out that petitioner did not raise issues on the penalty imposed or the defenses that may be
presented, only the prima facie presumption in Section 14.52  
Moreover, petitioners claim that, while the additional imposable fine is disadvantageous to petitioner,
she may avail of the second defense provided in the amendment, which benefits her. They add that the
additional penalty cannot retroactively apply to petitioner since it will disadvantage her. Further, they
submit that since Republic Act No. 11053 retains the prima facie presumption, petitioner may still incur
criminal liability. As such, this case still presents a justiciable controversy.53  

As of June 25, 2019, petitioner has been detained at the San Pedro City.54  

The primary issue to be resolved by this Court is whether or not Sections 5 and 14 of the Anti-Hazing
Law should be declared unconstitutional.  

This Court, however, must first rule upon whether or not the Petition is a proper remedy, and whether
or not bringing the Petition directly before this Court was a proper recourse.  

  I 

A requirement for the exercise of this Court's power of judicial review is that the case must be ripe for
adjudication: 

Petitioners must, thus, comply with the requisites for the exercise of the power of judicial review: (1)
there must be an actual case or justiciable controversy before this Court; (2) the question before this
Court must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4)
the issue of constitutionality must be raised at the earliest opportunity and must be the very litis
mota of the case.55 (Citation omitted)

An issue is ripe for adjudication when an assailed act has already been accomplished or performed by a
branch of government. Moreover, the challenged act must have directly adversely affected the party
challenging it. In Philconsa v. Philippine Government : 56

For a case to be considered ripe for adjudication, it is a prerequisite that an act had then been
accomplished or performed by either branch of government before a court may interfere, and the
petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. Petitioner must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of.57 (Citations omitted)

When matters are still pending or yet to be resolved by some other competent court or body, then
those matters are not yet ripe for this Court's adjudication.58 This is especially true when there are facts
that are actively controverted or disputed.59  

Here, petitioner argues that she should not have been charged with violating the Anti-Hazing Law as she
allegedly did not have either actual knowledge or participation in the initiation rites of the Tau Gamma
Phi Fraternity. She claims that she was "merely walking around the premises with her fellow sisters in
the Sorority "60 and "was completely unaware "61 that Abracia was being hazed then.  

That petitioner did not actually know about or participate in the hazing is a matter of defense and must
be proved by presentation of evidence during trial. To determine at this stage, where a trial has yet to
be conducted, whether petitioner was correctly charged would be to demand that this Court
hypothetically admit the truth of her claims. As the criminal case is still ongoing, it would be premature
to resolve the factual issues petitioner raises. This Court cannot preempt the trial court's determination
on the truth or falsity of petitioner's claims.  

II

 Petitioner's direct resort to this Court, when there is a perfectly competent trial court before which she
may raise her constitutional question, abrogates the doctrine of hierarchy of courts.  

"The doctrine of hierarchy of courts ensures judicial efficiency at all levels of courts." 62 In Aala v. Uy.63

The doctrine on hierarchy of courts is a practical judicial policy designed to restrain parties from directly
resorting to this Court when relief may be obtained before the lower courts. The logic behind this policy
is grounded on the need to prevent " inordinate demands upon the Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction," as well as to prevent the congestion of
the Court's dockets. Hence, for this Court to be able to "satisfactorily perform the functions assigned to
it by the fundamental charter [,] " it must remain as a "court of last resort." This can be achieved by
relieving the Court of the "task of dealing with causes in the first instance."

As expressly provided in the Constitution, this Court has original jurisdiction "over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus." However, this Court has
emphasized in People  v. Cuaresma that the power to issue writs of certiorari, prohibition,
and mandamus does not exclusively pertain to this Court. Rather, it is shared with the Court of Appeals
and the Regional Trial Courts. Nevertheless, "this concurrence of jurisdiction " does not give parties
unfettered discretion as to the choice of forum. The doctrine on hierarchy of courts is determinative of
the appropriate venue where petitions for extraordinary writs should be filed. Parties cannot randomly
select the court or forum to which their actions will be directed.

There is another reason why this Court enjoins strict adherence to the doctrine on hierarchy of courts.
As explained in Diocese of Bacolod v. Commission on Elections, "[t]he doctrine that requires respect for
the hierarchy of courts was created by this court to ensure that every level of the judiciary performs its
designated roles in an effective and efficient manner."  

....

Consequently, this Court will not entertain direct resort to it when relief can be obtained in the lower
Courts. This holds especially true when questions of fact are raised. Unlike this Court, trial courts and the
Court of Appeals are better equipped to resolve questions of fact. They are in the best position to deal
with causes in the first instance 64

A motion to quash an information may be filed at any time before a plea is entered by the
accused.65 The accused may move to quash an information on constitutional grounds,66 based on the
theory that there can be no crime if there is no law, the law being invalid (nullum crimen sine
lege). Indeed, among the prayers in the Petition is for this Court to quash the Information in Criminal
Case No. 2008-895: 

IT IS MOST RESPECTFULLY PRAYED THAT IN THE ALTERNATIVE TO DECLARE THE INFORMATION DATED
OCTOBER 20, 2008 IN CRIMINAL CASE NO. 2008-895 BEFORE BRANCH 30, REGIONAL TRIAL COURT OF
LUCENA CITY, IN SO FAR AS PETITIONER AND OTHER MEMBERS OF THE TAU GAMMA SIGMA SORORITY,
ARE CONCERNED.67
Evidently, petitioner herself recognizes that the issue of the constitutionality of the Anti-Hazing Law's
provisions is not incompatible with the quashal of the Information. Aside from her bare invocation that
her substantive rights are being derogated, petitioner fails to explain the necessity and urgency of her
direct resort to this Court.  

In her Memorandum, petitioner points out that the Information fails to charge her and her fellow
sorority members with actual participation in the alleged crime:  

The Information in Criminal Case No. 2008-895, above quoted immediately charged all the Members of
Tau Gamma Phi fraternity and Tau Gamma Sigma Sorority as principals/conspirators for the death of a
neophyte who 3 days after the initiation rites in question, resulting allegedly from the hazing by a
member or members of the fraternity as quoted above.

The Information did not allege that all of the 46 accused actually participated in the hazing that later
allegedly resulted in the death of neophyte Chester Paolo Abracia a few days after; it merely stated that
the 46 accused are "all active members of Tau Gamma Phi Fraternity and Tau Gamma Sigma Sorority,
acting in conspiracy with one another".68

This claim is precisely what is addressed in a motion to quash. As correctly pointed out by public
respondents, the issues of petitioner's minority and right to bail should be raised in the trial court as
well.  

To justify the filing of this Petition before this Court absent any intermediary decision, resolution, or
order by any lower court, petitioner argues that this Court is "the final arbiter whether or not a law
violates the Constitution , particularly the rights of citizens under the Bill of Rights."69  

Indeed, this Court is the final arbiter of the constitutionality of any law-but we are not the sole and
exclusive forum before which constitutional questions may be posed.70 We are the court of last resort,
not the first.  

Regional trial courts, including the one before which Criminal Case No. 2008-895 is pending, are vested
with judicial power, which embraces the power to determine if a law breaches the Constitution.
In Garcia v. Drilon:71

It is settled that [Regional Trial Courts] have jurisdiction to resolve the constitutionality of a statute, "this
authority being embraced in the general definition of the judicial power to determine what are the valid
and binding laws by the criterion of their conformity to the fundamental law." The Constitution vests the
power of judicial review or the power to declare the constitutionality or validity of a law, treaty,
international or executive agreement, presidential decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs. We said in J.M. Tuason and Co., Inc. v. CA that, "[p]lainly the
Constitution contemplates that the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior
courts in cases where such constitutionality happens to be in issue.'m (Emphasis in the original, citations
omitted)

Notably, at the time the Petition was filed before this Court, petitioner admitted that she was "at large
"73 and had not refuted public respondents' claim that she had been a fugitive from justice, having
evaded arrest from 200874 until the time she was finally detained. The failure to avail of the proper
remedies in the proper forum lies with her.  

Nonetheless, regardless of petitioner's remedial errors, this Court acknowledges that the doctrine of
hierarchy of courts is not ironclad, especially when pressing constitutional matters are at stake.
In Diocese of Bacolod v. Commission on Elections: 75

Thus, the doctrine of hierarchy of courts is not an iron-clad rule. This court has "full discretionary power
to take cognizance and assume jurisdiction [over] special civil actions for certiorari ... filed directly with it
for exceptionally compelling reasons or if warranted by the nature of the issues clearly and specifically
raised in the petition." As correctly pointed out by petitioners, we have provided exceptions to this
doctrine:  

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must
be addressed at the most immediate time. A direct resort to this court includes availing of the remedies
of certiorari and prohibition to assail the constitutionality of actions of both legislative and executive
branches of the government. 

 . . . .

A second exception is when the issues involved are of transcendental importance. In these cases, the
imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for
prudence. The doctrine relating to constitutional issues of transcendental importance prevents courts
from the paralysis of procedural niceties when clearly faced with the need for substantial protection.  

Third, cases of first impression warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan, this court took cognizance of the case as a matter of first impression that may guide
the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.  

....

Fourth, the constitutional issues raised are better decided by this court. In Drilon v. Lim, this court held
that: 

... it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgment
of this Court in the consideration of its validity, which is better determined after a thorough deliberation
by a collegiate body and with the concurrence of the majority of those who participated in its
discussion 76

Here, there is transcendental interest in determining whether a penal statute with grave consequences
to the life and liberty of those charged under it is consistent with our constitutional principles. In the
interest of judicial economy, this Court shall resolve this case on the merits.  

III
While petitioner purports to assail the constitutionality of both Sections 577 and 478 of the Anti-Hazing
law, all her arguments are focused on paragraph 4 of Section 14. In her Petition, she states:

It is most respectfully submitted that the provision of RA No. 8049 in so far as it penalizes a mere
member not of the fraternity or sorority, who was merely present on the occasion of the so-called
initiation rites but had not witnessed, much less participated in any wrong doing, is
presumed/considered as principal, for whatever acts committed by any member or members,
considered as "hazing" punishable sections 3 and 4 of the law, RA 8049, and is presumed/considered to
have failed to take any action to prevent the same from occurring, as in this case, where petitioner
under the circumstances, was immediately indicted as principal for the acts of people albeit members of
a fraternity, which is punishable by reclusion perpetua, and non-bailable[.]79

The pertinent portion of Section 14 provides:

The presence of any person , even if such person is not a member of the fraternity, sorority, or
organization, during the hazing is prima facie evidence of participation therein as a principal unless such
person or persons prevented the commission of the acts punishable herein or promptly reported the
same to the law enforcement authorities if they can do so without peril to their person or their family.

This Court has upheld the constitutionality of disputable presumptions in criminal laws.80 The
constitutional presumption of innocence is not violated when there is a logical connection between the
fact proved and the ultimate fact presumed.81 When such prima facie evidence is unexplained or not
contradicted by the accused, the conviction founded on such evidence will be valid.82 However, the
prosecution must still prove the guilt of the accused beyond reasonable doubt.83 The existence of a
disputable presumption does not preclude the presentation of contrary evidence.84  

In People v. Mingoa,85 this Court passed upon the constitutionality of Article 217 of the Revised Penal
Code. It provides that a public officer's failure "to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized officer," is prima facie evidence that
such missing funds or property were put to personal use.  Upholding Article 217's constitutionality, this
Court declared:

The contention that this legal provision violates the constitutional right of the accused to be presumed
i1mocent until the contrary is proved cannot be sustained. The question of the constitutionality of the
statute not having been raised in the court below, it may not be considered for the first time on appeal.
(Robb vs. People, 68 Phil., 320.)

In any event, the validity of statutes establishing presumptions in criminal cases is now a settled matter,
Cooley, in his work on constitutional limitations, 8th ed., Vol. I, pp. 639-641, says that "there is no
constitutional objection to the passage of a law providing that the presumption of innocence may be
overcome by a contrary presumption founded upon the experience of human conduct, and enacting
what evidence shall be sufficient to overcome such presumption of innocence." In line with this view, it
is generally held in the United States that the legislature may enact that when certain facts have been
proved they shall be prima facie evidence of the existence of the guilt of the accused and shift the
burden of proof provided there be a rational connection between the facts proved and the ultimate fact
presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary
because of lack of connection between the two in common experience.86
In People v. Baludda,87 this Court affirmed the constitutionality of the disputable presumption that the
finding of a dangerous drug in the accused's house or premises, absent a satisfactory explanation,
amounts to knowledge or animus possidendi:

Under the Rules of Evidence, it is disputably presumed that things which a person possesses or over
which he exercises acts of ownership, are owned by him. In U.S. vs. Bandoc, the Court ruled that the
finding of a dangerous drug in the house or within the premises of the house of the accused is prima
facie evidence of knowledge or animus possidendi and is enough to convict in the absence of a
satisfactory explanation. The constitutional presumption of innocence will not apply as long as there is
some logical c01mection between the fact proved and the ultimate fact presumed, and the inference of
one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. The
burden of evidence is thus shifted on the possessor of the dangerous drug to explain absence of animus
possidendi.88 (Citations omitted)

In Dizon-Pamintuan v. People,89 Section 5 of Presidential Decree No. 1612, which provides that the
mere possession of stolen goods is prima facie evidence of fencing, was found valid:  

Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article, item,
object, or anything of value which has been the subject of robbery or thievery shall be prima
facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that
the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable
for no other natural or logical inference can arise from the established fact of her possession of the
proceeds of the crime of robbery or theft. This presumption does not offend the presumption
ofim1ocence enshrined in the fundamental law. In the early case of United States vs. Luling, this Court
held:

It has been frequently decided, in case of statutory crimes, that no constitutional provision is violated by
a statute providing that proof by the state of some material fact or facts shall constitute prima facie
evidence of guilt, and that then the burden is shifted to the defendant for the purpose of showing that
such act or acts are innocent and are committed without unlawful intention. (Commonwealth vs. Minor,
88 Ky., 422.) 

In some of the States, as well as in England, there exist what are known as common law offenses. In the
Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare
what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall
constitute a crime , as well as what act or acts shall constitute a crime, as well as what proof shall
constitute prima facie evidence of guilt, and then to put upon the defendant the burden o f showing
that such act or acts are innocent and are not committed with any criminal intent or
intention.90 (Citations omitted)

In fact, the constitutionality of Section 14, paragraph 4 of the Anti-Hazing Law has already been
discussed—and upheld—by this Court. In Dungo v. People,91 this Court acknowledged that the secrecy
and concealment in initiation rites, and the culture of silence within many organizations, would make
the prosecution of perpetrators under the Anti-Hazing Law difficult: 

Secrecy and silence are common characterizations of the dynamics of hazing. To require the prosecutor
to indicate every step of the planned initiation rite in the information at the inception of the criminal
case, when details of the clandestine hazing are almost nil, would be an arduous task, if not downright
impossible. The law does not require the impossible (lex non cognit ad impossibilia).

....

Needless to state, the crime of hazing is shrouded in secrecy. Fraternities and sororities, especially the
Greek organizations, are secretive in nature and their members are reluctant to give any information
regarding initiation rites. The silence is only broken after someone has been injured so severely that
medical attention is required. It is only at this point that the secret is revealed and the activities become
public. Bearing in mind the concealment of hazing, it is only logical and proper for the prosecution to
resort to the presentation of circumstantial evidence to prove it.92 (Citations omitted)

Because o f this, this Court held that the provision that presence during a hazing is prima facie evidence
of participation in it relates to the conspiracy in the crime:

The Court does not categorically agree that, under R.A. No. 8049, the prosecution need not prove
conspiracy. Jurisprudence dictates that conspiracy must be established, not by conjectures, but by
positive and conclusive evidence. Conspiracy transcends mere companionship and mere presence at the
scene of the crime does not in itself amount to conspiracy. Even knowledge, acquiescence in or
agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active
participation in the commission of the crime with a view to the furtherance of the common design and
purpose.  

R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable presumption of
actual participation; and which modifies the concept of conspiracy. Section 4, paragraph 6 thereof
provides that the presence of any person during the hazing is prima facie evidence of participation as
principal, unless he prevented the commission of the punishable acts. This provision is unique because a
disputable presumption arises from the mere presence of the offender during the hazing, which can be
rebutted by proving that the accused took steps to prevent the commission of the hazing.  

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049 before the CA, but
did not succeed. "[A] finding of prima facie evidence ... does not shatter the presumptive innocence the
accused enjoys because, before prima facie evidence arises, certain facts have still to be proved; the trial
court cannot depend alone on such evidence, because precisely, it is merely prima facie. It must still
satisfy that the accused is guilty beyond reasonable doubt of the offense charged. Neither can it rely on
the weak defense the latter may adduce."  

Penal laws which feature prima facie evidence by disputable presumptions against the offenders are not
new, and can be observed in the following: (1) the possession of drug paraphernalia gives rise to prima
facie evidence of the use of dangerous drug; (2) the dishonor of the check for insufficient funds is prima
facie evidence of knowledge of such insufficiency of funds or credit; and (3) the possession of any good
which has been the subject of robbery or thievery shall be prima facie evidence of fencing.  

Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy in the crime of
hazing. The common design of offenders is to haze the victim. Some of the overt acts that could be
committed by the offenders would be to (1) plan the hazing activity as a requirement of the victim's
initiation to the fraternity; (2) induce the victim to attend the hazing; and (3) actually participate in the
infliction of physical injuries.
....

Hence, generally, mere presence at the scene of the crime does not in itself amount to conspiracy.
Exceptionally, under R.A. No. 8049, the participation of the offenders in the criminal conspiracy can be
proven by the prima facie evidence due to their presence during the hazing, unless they prevented the
commission of the acts therein.93 (Citations omitted )

Here, petitioner fails to show that a logical relation between the fact proved-presence of a person
during the hazing— and the ultimate fact presumed—their participation in the hazing as a principal—is
lacking. Neither has it been shown how Section 14 of the Anti-Hazing Law does away with the
requirement that the prosecution must prove the participation of the accused in the hazing beyond
reasonable doubt.

On the contrary, the study of human behavior has shown that being surrounded by people who approve
or encourage one's conduct impairs otherwise independent judgment, be it in the form of peer
pressure, herd mentality, or the bystander effect.  

The term "groupthink" was coined by American psychologist Irving L. Janis to describe the phenomenon
of "mental deterioration of mental efficiency, reality testing, and moral judgment that results from
group pressures. "94 He observed:

Groups, like individuals, have shortcomings. Groups can bring out the worst as well as the best in man.
Nietzsche went so far as to say that madness is the exception in individuals but the rule in groups. A
considerable amount of social science shows that in circumstances of extreme crisis, group contagion
occasionally gives rise to collective panic, violent acts of scapegoating, and other forms of what could be
called group madness.95

The failure of individuals in a group to intervene allows evil acts to persist, as explained by Philip
Zimbardo, the American psychologist behind the controversial Stanford Prison Experiment:96

In situations where evil is being practiced, there are perpetrators, victims, and survivors. However, there
are often observers of the ongoing activities or people who know what is going on and do not intervene
to help or to challenge the evil and thereby enable evil to persist by their inaction.  

It is the good cops who never oppose the brutality of their buddies beating up minorities on the streets
or in the back room of the station house. It was the good bishops and cardinals who covered over the
sins of their predatory parish priests because of their overriding concern for the image of the Catholic
Church. They knew what was wrong and did nothing to really confront that evil, thereby enabling these
pederasts to continue sinning for years on end (at the ultimate cost to the Church of billions in
reparations and many disillusioned followers).  

Similarly, it was the good workers at Enron, WorldCom, Arthur Andersen, and hosts of similarly corrupt
corporations who looked the other way when the books were being cooked. Moreover, as I noted
earlier, in the Stanford Prison Experiment it was the good guards who never intervened on behalf of the
suffering prisoners to get the bad guards to lighten up, thereby implicitly condoning their continually
escalating abuse. It was I, who saw these evils and limited only physical violence by the guards as my
intervention while allowing psychological violence to fill our dungeon prison. By trapping myself in the
conflicting roles of researcher and prison superintendent, I too was overwhelmed with their dual
demands, which dimmed my focus on the suffering taking place before my eyes. I too was thus guilty of
the evil of inaction.97 (Citation omitted )

Through their express and implicit sanction, observers of hazing aggravate the abuses perpetuated upon
neophytes. As an American fraternity member explained, hazing is "almost like performance
art"98 where the so called audience plays as much of a role as the neophytes at the center of the
initiation rites. Hazing derives its effectiveness from the humiliation it achieves. Humiliation requires an
audience. The audience provides the provocation, goading the actors to escalate borderline conduct
toward more extreme behavior that would otherwise be intolerable. In situations like this, presence is
participation.  

As described by a victim of hazing in the United States:

Nuwer: Is this theater or sadism?  

Pledge: It was a lot of theater. In hindsight, every time I talked to him outside the room [where the
hazing took place] , I always thought he was kind of scared of me. I was 21, just actually four months
younger than he was . . . but some of the mystique he had wasn't there when we weren't in the room.  

Nuwer: He was like an actor getting ready to come onstage . . . or an athlete before a ballgame?  

Pledge: Definitely. I was told that before he came downstairs he would be in his room drinking or
whatever, and a lot of the brothers would come in to fire him up. They'd get him all riled up, saying we
weren't respecting the house. They would just provoke him, or maybe they'd just get him angry, or a
little drunk. He'd come in and, like I said, he'd be this different person.... They were getting him hyped
up, jacked up, ready to go.99

Thus, those group members who do not actually perform the hazing ritual, but who by their presence
incite or exacerbate the violence being committed, may be principals either by inducement or by
indispensable cooperation.100  

Moreover, petitioner's claim that Section 14 of the Anti-Hazing Law violates the rule on res inter alios
acta lacks merit. Res inter alios acta provides that a party's rights generally cannot be prejudiced by
another's act, declaration, or omission.101 However, in a conspiracy, the act of one is the act of all,
rendering all conspirators as co-principals "regardless of the extent and character of their
participation[.]"102 Under Rule 130, Section 30 of the Rules of Court, an exception to the res inter alios
acta rule is an admission by a conspirator relating to the conspiracy:  

SECTION 30. Admission by  conspirator. - The act or declaration of a conspirator relating to the
conspiracy and during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

As noted in Dungo, hazing often involves a conspiracy among those involved, be it in the planning stage,
the inducement of the victim, or in the participation in the actual initiation rites. 103 The rule on res
inter alios acta, then, does not apply.  

IV

Petitioner further claims that the Anti-Hazing Law imposes cruel and unusual punishments on those
charged under it, as the offense is punishable with reclusion perpetua, a non-bailable offense.104 She
also argues that Sections 5 and 14 of the Anti-Hazing Law are a bill of attainder for immediately
punishing members of a particular group as principals or co-conspirators, regardless of actual knowledge
or participation in the crime.105  Both these arguments are without merit.  

An effective and appropriate analysis of constitutional provisions requires a holistic approach.106 It

starts with the text itself, which, whenever possible, must be given their ordinary meaning, consistent
with the basic principle of verba legis.107 The constitutional provisions must be understood as being
parts of a greater whole:  

Reading a constitutional provision requires awareness of its relation with the whole of the Constitution.
A constitutional provision is but a constituent of a greater whole. It is the framework of the Constitution
that animates each of its components through the dynamism of these components' interrelations. What
is called into operation is the entire document, not simply a peripheral item. The Constitution should,
therefore, be appreciated and read as a singular, whole unit - ut magis valeat quam pereat. Each
provision must be understood and effected in a way that gives life to all that the Constitution contains,
from its foundational principles to its finest fixings.108 (Citations omitted)

The history of a constitutional provision may also be a source of guidance in its interpretation.
Comparing the present wording of the text with its prior counterparts, both as to form and substance,
may illuminate on the meaning of the provision.109  

Article III, Section 19(1) of the 1987 Constitution provides:  

SECTION 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous
crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.

The prohibition against the infliction of cruel, degrading, or inhuman punishment in the Philippines
traces its roots to U.S. President William McKinley's Instructions to the Philippine Commission in 1900.
There, the prohibition against "cruel and unusual punishment" was first imposed:

Upon every division and branch of the government of the Philippines, therefore, must be imposed these
inviolable rules:  

. . .that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted[.]110 (Emphasis supplied )

This phrase has appeared in every fundamental law adopted since, with nearly consistent wording. It
was upon the enactment of the 1987 Constitution that the wording of the provision was changed from
"unusual" to "degrading or inhuman."  

This constitutional prohibition had generally been aimed at the "form or character of the punishment
rather than its severity in respect of duration or amount,"111 such as "those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like."112   It
is thus directed against "extreme corporeal or psychological punishment that strips the individual of
[their] humanity."113  
In line with this, this Court has found that the penalty of life imprisonment or reclusion perpetua does
not violate the prohibition.114 Even the death penalty in itself was not considered cruel, degrading, or
inhuman.115

Nonetheless, this Court has found that penalties like fines or imprisonment may be cruel, degrading, or
inhuman when they are "flagrantly and plainly oppressive and wholly disproportionate to the nature of
the offense as to shock the moral sense of the community."116 However, if the severe penalty has a
legitimate purpose, then the punishment is proportionate and the prohibition is not violated.  

In Spouses Lim v.People,117 the penalty of reclusion perpetua on a person who committed estafa by
means of a bouncing check worth P365,750.00 was found consistent with the intent of Presidential
Decree No. 818. The penalty did not violate Article III, Section 19(1) of the Constitution, this Court found:

Petitioners contend that, inasmuch as the amount of the subject check is P365,750, they can be
penalized with reclusion perpetua or 30 years of imprisonment. This penalty, according to petitioners, is
too severe and disproportionate to the crime they committed and infringes on the express mandate of
Article III, Section 19 of the Constitution which prohibits the infliction of cruel, degrading and inhuman
punishment.  

Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to
the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the
nature of the offense as to shock the moral sense of the community. It takes more than merely being
harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution. Based on
this principle, the Court has consistently overruled contentions of the defense that the penalty of fine or
imprisonment authorized by the statute involved is cruel and degrading.  

In People vs. Tongko, this Court held that the prohibition against cruel and unusual punishment is
generally aimed at the form or character of the punishment rather than its severity in respect of its
duration or amount, and applies to punishments which never existed in America or which public
sentiment regards as cruel or obsolete.  This refers, for instance, to those inflicted at the whipping post
or in the pillory, to burning at the stake, breaking on the wheel, disemboweling and the like. The fact
that the penalty is severe provides insufficient basis to declare a law unconstitutional and does not, by
that circumstance alone, make it cruel and inhuman.

...

. . .The primary purpose of PD 818 is emphatically and categorically stated in the following: 

WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases committed by means
of bouncing checks;

WHEREAS, if  not checked at once, these criminal acts would erode the people's confidence in the use of
negotiable instruments as a medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by increasing the
existing penalties provided therefor
Clearly, the increase in the penalty, far from being cruel and degrading, was motivated by a laudable
purpose, namely, to effectuate the repression of an evil that undermines the country's commercial and
economic growth, and to serve as a necessary precaution to deter people from issuing bouncing checks.
The fact that PD 818 did not increase the amounts corresponding to the new penalties only proves that
the amount is immaterial and inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks. Taking into account the salutary purpose for
which said law was decreed, we conclude that PD 818 does not violate Section 19 of Article III of the
Constitution.118 (Citations omitted )

The intent of the Anti-Hazing Law is to deter members of a fraternity, sorority, organization, or
association from making hazing a requirement for admission. By making the conduct of initiation rites
that cause physical and psychological harm malum prohibitum, the law rejects the defense that one's
desire to belong to a group gives that group the license to injure, or even cause the person's death:  

The public outrage over the death of Leonardo "Lem1y" Villa — the victim in this case — on 10 February
1991 led to a very strong clamor to put an end to hazing. Due in large part to the brave efforts of his
mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death.
This widespread condemnation prompted Congress to enact a special law, which became effective in
1995, that would criminalize hazing. The intent of the law was to discourage members from making
hazing a requirement for joining their sorority, fraternity, organization, or association. Moreover, the
law was meant to counteract the exculpatory implications of "consent" and " initial innocent act" in the
conduct of initiation rites by making the mere act of hazing punishable or mala prohibita.119 (Citations
omitted)

Petitioner here fails to show how the penalties imposed under the Anti Hazing Law would be cruel,
degrading, or inhuman punishment, when they are similar to those imposed for the same offenses
under the Revised Penal Code, albeit a degree higher.120 To emphasize, the Anti-Hazing Law aims to
prevent organizations from making hazing a requirement for admission.121  The increased penalties
imposed on those who participate in hazing is the country's response to a reprehensible phenomenon
that persists in schools and institutions.122 The Anti-Hazing Law seeks to punish the conspiracy of
silence and secrecy, tantamount to impunity, that would otherwise shroud the crime$ committed.123  

In fact, the amendments on the imposable penalties introduced by Republic Act No. 11053 bolster the
State's interest in prohibiting hazing. As noted by public respondents, a P3-million fine shall be imposed
in addition to the penalty of reclusion perpetua for those who actually planned or participated in the
hazing if it results in death, rape, sodomy, or mutilation. Further, Republic Act No. 11053 put in place
imposable penalties on certain members, officers, and alumni of the organization involved in the hazing,
and prescribes the administrative sanctions, if applicable.124 The concealment of the offense or
obstruction of the investigation is also penalized.125  

Notably, Section 14 (c) of Republic Act No. 11053 imposes the penalty of reclusion temporal in its
maximum period and a P1-million fine on all persons present in the conduct of the hazing. This new
penalty affirms the law's policy to suppress the escalation and encouragement of hazing, and to severely
punish bystanders and watchers of the reprehensible acts committed.  

In People v. Feliciano, Jr.: 126

The prosecution of fraternity-related violence, however, is harder than the prosecution of ordinary
crimes. Most of the time, the evidence is merely circumstantial. The reason is obvious: loyalty to the
fraternity dictates that brods do not turn on their brods. A crime can go unprosecuted for as long as the
brotherhood remains silent

Perhaps the best person to explain fraternity culture is one of its own.  

Raymund Narag was among those charged in this case but was eventually acquitted by the trial court. In
2009, he wrote a blog entry outlining the culture and practices of a fraternity, referring to the fraternity
system as "a big black hole that sucks these young promising men to their graves." This, of course, is
merely his personal opinion on the matter. However, it is illuminating to see a glimpse of how a
fraternity member views his disillusionment of an organization with which he voluntarily associated. In
particular, he writes that:  

The fraternities anchor their strength on secrecy. Like the Sicilian code of omerta, fraternity members
are bound to keep the secrets from the non-members. They have codes and symbols the frat members
alone can understand. They know if there are problems in campus by mere signs posted in conspicuous
places. They have a different set [sic] of communicating, like inverting the spelling of words, so that
ordinary conversations cannot be decoded by non-members.  

It takes a lot of acculturation in order for frat members to imbibe the code of silence. The members have
to be a mainstay of the tambayan to know the latest developments about new members and the
activities of other frats. Secrets are even denied to some members who are not really in to [sic] the
system. They have to earn a reputation to be part of the inner sanctum. It is a form of giving premium to
become the "true blue member".  

The code of silence reinforces the feeling of elitism. The fraternities are worlds of their own. They are
sovereign in their existence. They have their own myths, conceptualization of themselves and
worldviews. Save perhaps to their alumni association, they do not recognize any authority aside from
the head of the fraternity.  

 The secrecy that surrounds the traditions and practices of a fraternity becomes problematic on an
evidentiary level as there are no set standards from which a fraternity-related crime could be measured.
In People v. Gilbert Peralta, this Court could not consider a fraternity member's testimony biased
without any prior testimony on fraternity behavior:  

Esguerra testified that as a fraternity brother he would do anything and everything for the victim. A
witness may be said to be biased when his relation to the cause or to the parties is such that he has an
incentive to exaggerate or give false color or pervert the truth, or to state what is false. To impeach a
biased witness, the counsel must lay the proper foundation of the bias by asking the witness the facts
constituting the bias. In the case at bar, there was no proper impeachment by bias of the three (3)
prosecution witnesses. Esguerra's testimony that he would do anything for his fellow brothers was too
broad and general so as to constitute a motive to lie before the trial court. Counsel for the defense failed
to propound questions regarding the tenets of the fraternity that espouse absolute fealty of the
members to each other. The question was phrased so as to ask only for Esguerra's personal conviction....
 The inherent difficulty in the prosecution of fraternity-related violence forces the judiciary to be more
exacting in examining all the evidence on hand, with due regard to the peculiarities of the
circumstances.127 (Citations omitted)

Moreover, contrary to petitioner's assertion, the Anti-Hazing Law is not a bill of attainder.  

Bills of attainder are prohibited under A11icle III, Section 22 of the Constitution, which states: 

SECTION 22. No ex post facto law or bill of attainder shall be enacted.

A bill of attainder is rooted in the historical practice of the English Parliament to declare certain persons
—such as traitors—attainted, or stained, and that the corruption of their blood extended to their heirs,
who would not be allowed to inherit from the "source" of the corruption. These attainted persons and
their kin were usually so declared without the benefit of judicial process.128

In modern times, a bill of attainder is generally understood as a legislative act which inflicts punishment
on individuals or members of a particular group without a judicial trial.129 The earliest form of
prohibition against the enactment of bills of attainder was introduced in the Malolos Constitution:130

ARTICLE 14. No Filipino can be prosecuted or sentenced except by the judge or court that, by virtue of
the laws previous to the crime, has been given jurisdiction, and in the mam1er that these laws prescribe.

A bill of attainder encroaches on the courts' power to determine the guilt or innocence of the accused
and to impose the corresponding penalty, violating the doctrine of separation of powers.131  

For a law to be considered a bill of attainder, it must be shown to contain all of the following: "a
specification of certain individuals or a group of individuals, the imposition of a punishment, penal or
otherwise, and the lack of judicial trial."132 The most essential of these elements is the complete
exclusion of the courts from the determination of guilt and imposable penalty.133  

 In People v. Ferrer,134 this Court delved into the question of whether the Anti-Subversion Act, which
declared illegal the Communist Party of the Philippines and any other organizations that constitute an
"organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose
of establishing in the Philippines a totalitarian regime and place the Government under the control and
domination of an alien power[,]"135 was a bill of attainder.  

This Court found that the law was, in fact, not. It noted that the Anti Subversion Act would be a bill of
attainder only if it had made it unnecessary for members of the Communist Party to have to be charged
in court.136  Moreover, even if the Anti-Subversion Act specifically named the Communist Party, it
would be insufficient to declare the law a bill of attainder:

Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough
to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting
firms from serving as officers or employees of national banks on the basis of a legislative finding that the
persons mentioned would be subject to the temptation to commit acts deemed inimical to the national
economy, has been declared not to be a bill of attainder. Similarly, a statute requiring every secret, oath-
bound society having a membership of at least twenty to register, and punishing any person who
becomes a member of such society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan.  
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, requiring labor unions to file
with the Department of Labor affidavits of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization which teaches the overthrow of
the Government by force or by any illegal or unconstitutional method," was upheld by this Court.  

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members
of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of
attainder . It is upon this ground that statutes which disqualified those who had taken part in the
rebellion against the Government of the United States during the Civil War from holding office, or from
exercising their profession, or which prohibited the payment of further compensation to individuals
named in the Act on the basis of a finding that they had engaged in subversive activities, or which made
it a crime for a member of the Communist Party to serve as an officer or employee of a labor union,
have been invalidated as bills of attainder.  

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to
make such determination.137 (Citations omitted)

Similarly, in Bataan Shipyard  &  Engineering Company, Inc. v. Presidential Commission on Good
Government,138 Executive Orders No. 1 and 2, which created the Presidential Commission on Good
Government, were also found not to be bills of attainder. This Court declared that the finding of guilt
must still be made by a court, namely, the Sandiganbayan:

In the first place, nothing in the executive orders can be reasonably construed as a determination or
declaration of guilt. On the contrary, the executive orders, inclusive of Executive Order No. 14, make it
perfectly clear that any judgment of guilt in the amassing or acquisition of "ill-gotten wealth" is to be
handed down by a judicial tribunal, in this case, the Sandiganbayan, upon complaint filed and
prosecuted by the PCGG. In the second place, no punishment is inflicted by the executive orders, as the
merest glance at their provisions will immediately make apparent. In no sense, therefore, may the
executive orders be regarded as a bill of attainder.139

Here, the mere filing of an Information against petitioner and her fellow sorority members is not a
finding of their guilt of the crime charged. Contrary to her claim, petitioner is not being charged merely
because she is a member of the Tau Gamma Sigma Sorority, but because she is allegedly a principal by
direct participation in the hazing that led to Abracia's death. As stated, these are matters for the trial
court to decide. The prosecution must still prove these offense, and the accused's participation in it,
beyond reasonable doubt. Petitioner, in turn, may present her defenses to the allegations.  

Parenthetically, the amendments in Republic Act No. 11053 may be applied retroactively in cases like
petitioner's where the hazing resulted in death, contrary to the position taken by public respondents.
Previously, should an accused fail to overturn the prima facie presumption, they would be charged as
principals, with a corresponding penalty of reclusion perpetua when the hazing resulted in death. Now,
Section 14(c) imposes the lower penalty for one's presence during the hazing-reclusion temporal in its
maximum period with a P1-million fine. As the penalty is not reclusion perpetua, the accused may also
benefit from the application of Republic Act No. 4103, as amended, otherwise known as the
Indeterminate Sentence Law.
Legislative acts are presumed constitutional.140 To be declared unconstitutional, a statute or any of its
provisions must be shown to have clearly and unmistakably breached the Constitution.141 Petitioner
has failed to discharge her burden of overcoming the presumption of the constitutionality of Section 14
of the Anti-Hazing Law.  

Those who object to, intervene against, or attempt to stop the despicable or inhumane traditions or
rituals of an organization or institution may be branded as duwag, nakakahiya, walang pakisama,
traydor. Section 14, paragraph 4 of the Anti-Hazing Law turns cowardice into virtue, shame into
strength, and disobedience into heroism. More than that, this serves as a grave warning that failing to
act—knowing fully well that others are being traumatized, injured, maimed, or killed—does not make a
person only an observer or witness. It makes them a perpetrator.  

WHEREFORE, the Petition is DISMISSED for lack of merit.  

Let copies of this Decision be furnished the Director of the National Bureau of Investigation and the
Director General of the Philippine National Police. Both are DIRECTED to cause the immediate arrest of
those accused in Criminal Case No. 2008-895 who are still at large, and to inform this Court of their
compliance within ten (10) days from notice. The trial judge is likewise DIRECTED to issue such other and
further orders to take all the accused into custody and to hasten the proceedings in Criminal Case No.
2008-895. This Decision shall be immediately executory.  

SO ORDERED.