1

HARD LAW / SOFT LAW

The term soft law is used to denote agreements, principles and declarations that are not legally binding. Soft law
instruments are predominantly found in the international sphere. UN General Assembly resolutions are an example of
soft law. Hard law refers generally to legal obligations that are binding on the parties involved and which can be
legally enforced before a court.
That is the concept of sovereignty as auto-limitation, which, in the succinct language of Jellinek, "is the property of a
state-force due to which it has the exclusive capacity of legal self-determination and self-restriction.

Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person
who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not
for any other pre-extradition offenses. Once the asylum state extradites an individual to the requesting state under the
terms of an extradition treaty, that person can be prosecuted only for crimes specified in the extradition request.

associative state, in which businesses cooperate with each other and with government through self‐governing
organizations to create “desired outcomes for society,” resulted in a passive drift toward acceptance of a commercial
system—the “American system”—of broadcasting.

CO KIM CHAM VS VALDEZ

Petitioner Co Kim Cham had a pending Civil Case with the Court of First Instance of Manila initiated during the time
of the Japanese occupation.
The respondent judge, Judge Arsenio Dizon, refused to continue hearings on the case which were initiated during the
Japanese military occupation on the ground that the proclamation issued by General MacArthur that “all laws,
regulations and processes of any other government in the Philippines than that of the said Commonwealth are null
and void and without legal effect in areas of the Philippines free of enemy occupation and control” had the effect of
invalidating and nullifying all judicial proceedings and judgments of the court of the Philippines during the Japanese
military occupation, and that the lower courts have no jurisdiction to take cognizance of and continue judicial
proceedings pending in the courts of the defunct Republic of the Philippines in the absence of an enabling law
granting such authority.
Respondent, additionally contends that the government established during the Japanese occupation were no de facto
government.

Issues:

1. Whether or not judicial acts and proceedings of the court made during the Japanese occupation were valid
and remained valid even after the liberation or reoccupation of the Philippines by the United States and Filipino
forces.
2. Whether or not the October 23, 1944 proclamation issued by General MacArthur declaring that “all laws,
regulations and processes of any other government in the Philippines than that of the said Commonwealth are
null and void and without legal effect in areas of the Philippines free of enemy occupation and control” has
invalidated all judgments and judicial acts and proceedings of the courts.
3. Whether or not those courts could continue hearing the cases pending before them, if the said judicial acts
and proceedings were not invalidated by MacArthur’s proclamation.

Discussions:

 Political and international law recognizes that all acts and proceedings of a de facto government are good
and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese
occupation may be considered de facto governments, supported by the military force and deriving their authority
from the laws of war. The doctrine upon this subject is thus summed up by Halleck, in his work on International
Law (Vol. 2, p. 444): “The right of one belligerent to occupy and govern the territory of the enemy while in its
military possession, is one of the incidents of war, and flows directly from the right to conquer. We, therefore, do
not look to the Constitution or political institutions of the conqueror, for authority to establish a government for the
territory of the enemy in his possession, during its military occupation, nor for the rules by which the powers of
such government are regulated and limited. Such authority and such rules are derived directly from the laws war,
as established by the usage of the world, and confirmed by the writings of publicists and decisions of courts — in
fine, from the law of nations. . . . The municipal laws of a conquered territory, or the laws which regulate private
rights, continue in force during military occupation, excepts so far as they are suspended or changed by the acts
of conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at his pleasure either
change the existing laws or make new ones.”
 General MacArthur annulled proceedings of other governments in his proclamation October 23, 1944, but
this cannot be applied on judicial proceedings because such a construction would violate the law of nations.
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 If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had
been continued during the Japanese military administration, the Philippine Executive Commission, and the so-
called Republic of the Philippines, it stands to reason that the same courts, which had become re-established
and conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by
virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in
cases then pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to
continue said proceedings. As Taylor graphically points out in speaking of said principles “a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place with its right and duties
substantially unimpaired. . . . Such political resurrection is the result of a law analogous to that which enables
elastic bodies to regain their original shape upon removal of the external force, — and subject to the same
exception in case of absolute crushing of the whole fibre and content.”

Rulings:

1. The judicial acts and proceedings of the court were good and valid. The governments by the Philippine
Executive Commission and the Republic of the Philippines during the Japanese military occupation being de
facto governments, it necessarily follows that the judicial acts and proceedings of the court of justice of those
governments, which are not of a political complexion, were good and valid. Those not only judicial but also
legislative acts of de facto government, which are not of a political complexion, remained good and valid after the
liberation or reoccupation of the Philippines by the American and Filipino forces under the leadership of General
Douglas MacArthur.
2. The phrase “processes of any other government” is broad and may refer not only to the judicial processes,
but also to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or
other governmental agencies established in the Islands during the Japanese occupation. Taking into
consideration the fact that, as above indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political complexion, of the de facto governments during
the Japanese military occupation were good and valid before and remained so after the occupied territory had
come again into the power of the titular sovereign, it should be presumed that it was not, and could not have
been, the intention of General Douglas MacArthur, in using the phrase “processes of any other government” in
said proclamation, to refer to judicial processes, in violation of said principles of international law.
3. Although in theory the authority of the local civil and judicial administration is suspended as a matter of
course as soon as military occupation takes place, in practice the invader does not usually take the
administration of justice into his own hands, but continues the ordinary courts or tribunals to administer the laws
of the country which he is enjoined, unless absolutely prevented, to respect. An Executive Order of President
McKinley to the Secretary of War states that “in practice, they (the municipal laws) are not usually abrogated but
are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before
the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion.” And
Taylor in this connection says: “From a theoretical point of view it may be said that the conqueror is armed with
the right to substitute his arbitrary will for all pre-existing forms of government, legislative, executive and judicial.
From the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations
which compels the conqueror to continue local laws and institution so far as military necessity will permit.”
Undoubtedly, this practice has been adopted in order that the ordinary pursuits and business of society may not
be unnecessarily deranged, inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.

NORTHERN COTABATO CASE (BANGSAMORO AUTHORITY).

We are confronted with various petitions assailing the constitutionality of the Memorandum of Agreement on
Ancestral Domain (MOA-AD) between the respondent Government of the Republic of the Philippines Peace Panel
(GRP),1 and the Moro Islamic Liberation Front (MILF),2 to wit:

1. a petition for Prohibition and Mandamus with prayer for the issuance of a Writ of Preliminary Injunction and
Temporary Restraining Order (TRO) docketed as G.R. No. 183591, filed by the province of North Cotabato3 against
respondents GRP, Gen. Hermogenes Esperon, Jr.,4 and Secretary Eduardo Ermita,5 enjoining this Court to: (a)
compel respondents to disclose the contents of the MOA-AD, (b) prohibit respondents from formally signing the MOA-
AD, or, in the alternative, (c) declare the initialed MOA-AD as unconstitutional;

2. a petition for Prohibition and Mandamus with urgent prayer for the issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order docketed as G.R. No. 183752 filed by the City Government of Zamboanga, et
al.,6 against respondents (except Sec. Ermita), enjoining this Court to: (a) compel respondents to disclose the
contents of the MOA-AD, (b) prohibit respondents from signing the MOA-AD, (c) exclude the City of Zamboanga from
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being part of the Bangsamoro Juridical Entity (BJE), subject-matter of the MOA-AD, or, should the MOA-AD be
signed, (d) declare it as null and void.

3. a petition for Injunction and/or Declaratory Relief with prayer for the issuance of a Writ of Preliminary Injunction
and/or Temporary Restraining Order docketed as G.R. No. 183893 filed by the City of Iligan7 against respondents,
enjoining this Court to: (a) enjoin respondents from signing the MOA-AD, or, in the alternative, from implementing the
same, and (b) declare the MOA-AD as unconstitutional;

4. a petition for Certiorari, Mandamus and Prohibition with prayer for issuance of Writ of Injunction and/or Temporary
Restraining Order docketed as G.R. No. 183951 filed by provincial government of Zamboanga Del Norte,8 Rep.
Cecilia Jalosjos Carreon,9 Rep. Cesar G. Jalosjos,10 and Seth Frederick Jalosjos, Fernando R. Cabigon, Jr. Uldarico
Mejorada II, Edionar Zamoras, Edgar J. Baguio, Cedric Adriatico, Felixberto Bolando, Joseph Brendo Ajero,
Norbideiri Edding, Anecito Darunday, Angelica Carreon, and Luzviminda Torrino11 against respondents (except Sec.
Ermita), enjoining this Court to: (a) declare the MOA-AD as null and void and without operative effect, and (b) restrain
respondents from executing the MOA-AD.

5. a petition for Prohibition filed by Ernesto Maceda, Jejomar Binay, and Aquilino L. Pimentel III against respondents
(except Gen. Esperon and Sec. Ermita) and the MILF Peace Negotiating Panel,12 enjoining this Court to: (a) prohibit
and permanently enjoin respondents from formally signing the MOA-AD or any other agreement derive therefrom or
with terms similar thereto as well as from executing any of its provisions, and (b) nullify the MOA-AD for being
contrary to the Constitution and the laws;

6. a petition-in-intervention for Prohibition filed by Hon. Marino Ridao and Kisin Buxani, residents of Cotabato City,
lodged with the petitions of the Province of Cotabato and the City of Zamboanga in G.R. NOS. 183591 and 183752,
enjoining this Court to: (a) prohibit respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void,
or, in the alternative, (c) exclude all the thirty-seven (37) barangays of Cotabato City from the coverage of the BJE
territory;

7. a petition-in-intervention for Prohibition, Mandamus and Injunction filed by the Municipality of Linamon,13 enjoining
this Court to: (a) permanently restrain respondents from signing the MOA-AD, or (b) permanently restrain
respondents from implementing the initialed MOA-AD, if and when the MILF insists on its enforcement, and (c)
declare the MOA-AD as unconstitutional.

8. a petition-in-intervention for Prohibition filed by the City Government of Isabela, Basilan Province,14 enjoining this
Court to: (a) prohibit respondents from signing the MOA-AD, in the alternative, (b) declare the MOA-AD as null and
void, and (c) exclude all the forty-five (45) barangays of the City of Isabela from the BJE territory;

9. a petition-in-intervention for Prohibition filed by the province of Sultan Kudarat,15 enjoining this Court to: (a) prohibit
respondents from signing the MOA-AD, (b) declare the MOA-AD as null and void, and (c) exclude the two hundred
fourteen (214) barangays of Sultan Kudarat Province from the BJE territory;

10. a petition-in-intervention for Prohibition filed by members of the bar Carlos Gomez, Gerardo Dilig, Nesario Awat,
Joselito Alisuag, and Richalez Jagmis, all from Puerto Princesa City, Palawan, enjoining this Court to: (a) prohibit
respondents from implementing the MOA-AD which they had signed with the MILF Peace Negotiating Panel, in the
alternative, (b) declare the MOA-AD as null and void, and (c) exclude the Province of Palawan and the Municipalities
of Bataraza and Balabac from the BJE territory;

11. a petition-in-intervention for Prohibition filed by Ruy Elias Lopez as a member of the Bagobo tribe of indigenous
people living in Mindanao, enjoining this Court to: (a) permanently enjoin respondents from signing the MOA-AD, and,
in the alternative, (b) declare the MOA-AD as unenforceable against other indigenous peoples;

12. a petition-in-intervention for Mandamus and Prohibition filed by Senator Manuel Roxas, enjoining this Court to: (a)
direct respondents to publicly reveal or disclose the contents of the MOA-AD, including all documents pertinent,
related, attached thereto, and order respondents to furnish petitioner-in-intervention Sen. Roxas with the draft and/or
final, complete, official, and initialed copies of said MOA-AD, and (b) command respondents from acting on and
signing and implementing the MOA-AD; andcralawlibrary

13. a petition-in-intervention for Prohibition filed by former Senator Franklin Drilon and Atty. Adel Tamano, enjoining
this Court to prohibit and permanently enjoin respondents from further signing, executing, and entering into the MOA-
AD or any other agreement with terms similar to the MOA and/or from proceeding or implementing the MOA-AD.
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These cases have been consolidated and jointly heard on oral argument by the Court.

In all, the main petitions and the petitions-in-intervention bewail the lack of public consultation and invoke violation of
the people's right to information16 in the drafting of the MOA-AD. The numerous petitions pray for the following reliefs:
1. To prevent the signing of, and, in the alternative, implementation of the initialed, MOA-AD;
2. To be furnished copies of the MOA-AD grounded on their right to information on matters of public concern;
3. To exclude certain cities and barangays from the BJE territory;
4. To declare the MOA-AD as unconstitutional riddled as it is with constitutional infirmities; andcralawlibrary
5. As regards Intervenor Lopez, to declare the MOA-AD unenforceable against indigenous peoples.

The Facts

Before anything else, however, the difficult facts leading to this cause celebre.

The advent of the 1987 Constitution captured and reflected our nation's quest for true and lasting peace in Muslim
Mindanao. The new constitution included authority for the creation of an Autonomous Region of Muslim Mindanao
(ARMM).17 This trailblazing legal framework was actually catalyzed, as early as 1976, with the signing of the Tripoli
Agreement in Libya between the GRP and the MNLF.

On August 1, 1989, Congress passed and approved Republic Act 6734 entitled "An Act Providing for an Organic Act
for the Autonomous Region in Muslim Mindanao." Out of the thirteen (13) provinces and nine (9) cities subjected to a
plebiscite conducted on November 19. 1989, only four (4) provinces voted for their inclusion in the ARMM, namely:
Provinces of Maguindanao, Lanao Del Sur, Sulu and Tawi-Tawi.

Then, on September 2, 1996, the almost elusive pursuit of peace appeared to be within reach the GRP and the
MNLF entered into and signed a total and final peace agreement implementing the 1976 Tripoli Agreement entitled
"The Final Agreement on the Implementation of the 1976 Tripoli Agreement between the Government of the Republic
of the Philippines and the Moro National Liberation Front." Consistent thereto, on March 31, 2001, Congress
amended the first Organic Act (R.A. 6734) and enacted R.A. 9054 for the expansion of the ARMM. The plebiscite for
the ratification of the amended Organic Act conducted on August 14, 2001 resulted in the addition of Basilan Province
and Marawi City to the original four (4) provinces comprising the ARMM.

Peace was almost at hand, but not quite. The MILF, a break-away faction of the MNLF, wanted a separate peace. It
rejected the final peace agreement between the GRP and the MNLF, and continued their armed hostilities. Once
again, in the quest for lasting peace, the GRP initiated peace talks with the MILF. On July 18, 1997, the Agreement
on the General Cessation of Hostilities was signed between the GRP and the MILF Peace Panels. Next, on August
27, 1998, the General Framework of Agreement of Intent was signed by both parties at the Dawah Center, Crossing
Simuay, Sultan Kudarat, Maguindanao.

All these agreements, notwithstanding, at the end of 1999 to 2000, the MILF fortified its stronghold in forty-six (46)
camps, attacked a number of municipalities in Central Mindanao, and took control of the town hall of Kauswagan,
Lanao Del Norte. Government responded by twice declaring an "all-out war" against the MILF. On April 30, 2000, the
MILF unilaterally suspended the GRP-MILF Peace Talks and, likewise, declared an all-out war against the GRP and
ordered an all-out offensive on Armed Forces of the Philippines (AFP) camps all over Mindanao. Various attempts at
a peace settlement were unsuccessful.

On February 28, 2001, President Arroyo issued Executive Order No. 3 defining the policy and administrative structure
for the government's comprehensive peace effort, in relevant part:

Section 3. The Three Principles of the Comprehensive Peace Process. The comprehensive peace process shall
continue to be governed by the following underlying principles:

A. A comprehensive peace process should be community-based, reflecting the sentiments, values and principles
important to all Filipinos. Thus, it shall be defined not by the government alone, nor by the different contending groups
only, but by all Filipinos as one community.

b. A comprehensive peace process aims to forge a new social compact for a just, equitable, humane and pluralistic
society. It seeks to establish a genuinely pluralistic society, where all individuals and groups are free to engage in
peaceful competition for predominance of their political programs without fear, through the exercise of rights and
 5

liberties guaranteed by the Constitution, and where they may compete for political power through an electoral system
that is free, fair and honest.

c. A comprehensive peace process seeks a principled and peaceful resolution to the internal armed conflicts, with
neither blame nor surrender, but with dignity for all concerned.

Section 4. The Six Paths to Peace. The components of the comprehensive peace process comprise the processes
known as the "Paths to Peace." These components processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be
limited to, the following:

A. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action, new legislation, or even constitutional
amendments.

b. CONSENSUS-BUILDING AND EMPOWERMENT FOR PEACE. This component includes continuing consultations
on both national and local levels to build consensus for a peace agenda and process, and the mobilization and
facilitation of people's participation in the peace process.

c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE DIFFERENT REBEL GROUPS. This component involves
the conduct of face-to-face negotiations to reach peaceful settlement with the different rebel groups. It also involves
the effective implementation of peace agreements.

d. PROGRAMS FOR RECONCILIATION, REINTEGRATION INTO MAINSTREAM SOCIETY AND

REHABILITATION. This component includes programs to address the legal status and security of former rebels, as
well as community-based assistance programs to address the economic, social and psychological rehabilitation
needs of former rebels, demobilized combatants and civilian victims of the internal armed conflicts.

e. ADDRESSING CONCERNS ARISING FROM CONTINUING ARMED HOSTILITIES. This component involves the
strict implementation of laws and policy guidelines, and the institution of programs to ensure the protection of non-
combatants and reduce the impact of the armed conflict on communities found in conflict areas.

f. BUILDING AND NURTURING A CLIMATE CONDUCIVE TO PEACE. This component includes peace advocacy
and peace education programs, and the implementation of various confidence-building measures.

In addition thereto, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel providing the
General Guidelines on the Peace Talks with the MILF.

On April 3, 2001, as a consequence of the signing of the Agreement on the General Framework for the Resumption
of Peace Talks between the GRP and the MILF on March 24, 2001, in Kuala Lumpur, Malaysia, the MILF suspended
all military actions in their areas of operation.

Subsequently, two (2) rounds of Formal Peace Talks occurred in June 20-22, 2001 and August 5-7, 2001,
respectively, with the latter resulting in the signing of the Implementing Guidelines on the Security Aspect of the GRP-
MILF Tripoli Agreement on Peace of 2001 and effectively placing the parties on a cease-fire status. This agreement
contained three (3) strands, specifically: (1) the Security Aspect; (2) Humanitarian, Rehabilitation and Development
Aspects; and (c) the Ancestral Domain Aspect. And as previously stated, R.A. 9054 amending the Organic Act was
ratified with the inclusion of Basilan Province and Marawi City in the ARMM.

Yet, incidences of violence and violation of the cease-fire pact by the MILF continued to occur. On July 19, 2003, the
GRP and the MILF once again agreed to a cessation of hostilities and resume peace talks. In connection therewith,
on September 2, 2003, President Arroyo issued Memorandum of Instructions to the GRP Peace Panel, i.e., Revised
General Guidelines on the Peace Talks with the Moro Islamic Liberation Front.

Therefrom, the continuation of several rounds of previously held exploratory talks was held on June 20-21, 2005 at
Kuala Lumpur, Malaysia and resulted in the forging of clear parameters and principles to be pursued on the
Governance Strand (Aspect) of the Ancestral Domain. This was followed by another round of Exploratory Talks on
September 15-16, 2005 also in Kuala Lumpur, Malaysia, where both panels adopted the points on the same
strand/aspect of Ancestral Domain provided in the Peace Agreement of 2001 between the GRP and the MILF.
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The peace process finally culminated in the drafting of the subject MOA-AD intended to be signed in Kuala Lumpur,
Malaysia on August 5, 2008.

News report began to appear on the contents of the MOA-AD and its scheduled signing on August 5, 2008. Main
petitioners, except petitioners in G.R. No. 183962, all scrambled to procure a copy of the draft of this MOA-AD.
Inability to secure copies thereof and a categorical response from respondent GRP, prompted the filing of these
petitions. On the eve of the scheduled signing, by Resolution dated August 4, 2008, we issued a Temporary
Restraining Order commanding and directing respondents and their agents to cease and desist from formally signing
the MOA-AD. We likewise required the Office of the Solicitor General (OSG) to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD. On August 8, 2008, the OSG filed its Compliance with our Resolution.

Meanwhile, outbreak of violence occurred in some of the herein petitioner local government units. Oral arguments
were held on August 15, 22, & 29, 2008. On August 19, 2008, the OSG filed a Manifestation and Motion to Dismiss
the petitions on the ground that the Executive Department has declared it will thoroughly review MOA-AD and pursue
further negotiations addressing all objections hurled against said document. The OSG's motion was greatly opposed
by the petitioners.

On August 28, 2008, the Executive Department pronounced that it would no longer sign the MOA-AD. On the last day
of the oral arguments, Madame Solicitor General, on interpellation, declared that the Executive Department,
specifically, respondent Sec. Ermita has declared that the MOA-AD "will not be signed in this form, or in any other
form." Moreover, on September 3, 2008, President Arroyo dissolved the GRP Peace Panel. Finally, in compliance to
the Court's directive upon termination of the oral arguments, the parties' submitted their respective Memoranda.

Petitioners and petitioners-in-intervention maintain that despite the supervening events and foregoing declarations
and acts of the Executive Department, there remains a justiciable controversy, a conflict of legal rights by the parties
that ought to be adjudicated by this Court. They asseverate that, supervening events notwithstanding, the cases at
bench have not been mooted, or, even if so, the issues they raised fall within the exceptions to the moot and
academic principle. Consequently, even with the dissolution of the GRP Peace Panel and the positive and
unequivocal declaration by the Executive Department that the MOA-AD will not be signed in this form or in any other
form, the constitutionality of the MOA-AD may still be ruled upon.

At the other end of the spectrum, however, the OSG is adamant that this contentious MOA-AD is, in fact, only a
codification of "consensus points" and does not, in any way, create rights and obligations that must be declared
infirm, and thus, is not ripe for adjudication by this Court. Furthermore, the OSG insists that the petitions and
petitions-in-intervention must be dismissed on the ground of mootness, supervening events having rendered the
assailed MOA-AD inexistent and all the reliefs prayed for satisfied and fulfilled. In addition, the OSG argues that a
ruling by this Court on the constitutionality of the MOA-AD violates the doctrine of separation of powers as the
negotiation of the MOA-AD is embraced in the President's powers and in the nature of a political question, outside the
pale of judicial review.

The Issues

From the pleadings and as delineated on oral arguments, the issues raised are both procedural and substantive,
namely
1. Procedural
(i) Whether petitioners and petitioners-in-intervention have locus standi;
(ii) Whether the petitions and petitions-in-intervention continue to present a justiciable controversy still ripe for
adjudication; andcralawlibrary
(iii) Whether the petitions and petitions-in-intervention have become moot and academic.
2. Substantive
(i) Whether the MOA-AD is unconstitutional;
(ii) Whether the GRP Peace Panel (respondents) committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initialed the MOA-AD.

I submit that because of supervening events, the petitions and petitions-in-intervention are no longer ripe for
adjudication and that these cases have been rendered moot and academic. Accordingly, the petitions should be
dismissed.

I. PROCEDURAL i. Locus Standi

Our pronouncements in David v. Macapagal-Arroyo18 are instructive:

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The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen,
or taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or
taxpayer.

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman.
The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an executive
or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.

This Court adopted the direct injury test in our jurisdiction. In People v. Vera, it held that the person who impugns
the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix.

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan, where the
transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the far-reaching
implications of the petition notwithstanding its categorical statement that petitioner therein had no personality to file
the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are
met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental importance which
must be settled early; andcralawlibrary
(5) for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as
legislators.

The test we have laid down is whether the party has alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult questions.19 When an individual sues as a citizen, he must allege that he has been
or is about to be subjected to some burdens or penalties by reason of the statute or act complained of.20 When the
issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the
laws.21

The petitioners and petitioners-in-intervention claim locus standi with their invocation of the transcendental
importance of the issues involved and their assertion of public rights to information and to consultation.

Considering that the Court has discretion to relax this procedural technicality, and given the liberal attitude it has
adopted in a number of earlier case, we acknowledge the legal standing of the petitioners herein.

ii. Ripeness for Adjudication

A mandatory requirement for the Court's exercise of the power of judicial review is the existence of an actual case or
controversy. An actual case or controversy is a conflict of legal rights, an assertion of opposite legal claims which can
be resolved on the basis of existing law and jurisprudence.22 The controversy must be definite and concrete, bearing
upon the legal relations of parties who are pitted against each other due to their adverse legal interests.23
 8

But it is not enough that the controversy exists at the outset. To qualify for adjudication, it is necessary that the actual
controversy be extant at all stages of review, not merely at the time the complaint is filed.24 This is to say that the
case is ripe for judicial determination.

In Guingona v. Court of Appeals,25 we had occasion to declare:

Closely related to the requirement of "actual case," Bernas continues, is the second requirement that the question is
"ripe" for adjudication. A question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it. Thus, in PACU v. Secretary of Education, the Court declined to pass judgment
on the question of the validity of Section 3 of Act No. 2706, which provided that a private school may be opened to
the public, it must first obtain a permit from the secretary of education, because all the petitioning schools had
permits to operate and were actually operating, and none of them claimed that the secretary had threatened to
revoke their permit.

In Tan v. Macapagal, the Court said that Petitioner Gonzales "had the good sense to wait" until after the enactment of
the statute [Rep. Act No. 4913(1967)] requiring the submission to the electorate of certain proposed amendments to
the Constitution [Resolution Nos. 1 and 3 of Congress as a constituent body (1967)] before he could file his suit. It
was only when this condition was met that the matter became ripe for adjudication; prior to that stage, the judiciary
had to keep its hands off.

The doctrine of separation of powers calls for each branch of government to be left alone to discharge its duties as it
sees fit. Being one such branch, the judiciary, Justice Laurel asserted, "will neither direct nor restrain executive [or
legislative action] x x x." The legislative and the executive branches are not allowed to seek advice on what to do or
not to do; thus, judicial inquiry has to be postponed in the meantime. Before a court may enter the picture, a
prerequisite is that something has been accomplished or performed by either branch. Then may it pass on the validity
of what has been done but, then again, only "when x x x properly challenged in an appropriate legal proceeding."

In the case at bench, there is no gainsaying that at the time of the filing of the initial petitions up to the issuance by
this Court of the Temporary Restraining Order, there was an actual extant controversy. The signing of the MOA-AD in
Malaysia had been scheduled; several foreign dignitaries were invited to grace the ceremony. The timeliness of the
exercise of power by the Court may have prevented a possible constitutional transgression. It was so timely an
exercise of judicial review over an actual controversy by the Court such that it may have provided the impetus
sufficient for the Executive Department to "review" its own acts, and to decided, subsequently, to abort the entire
MOA-AD.

However, supervening events effectively eliminated the conflict of rights and opposite legal claims. There is no longer
an actual case or controversy between the parties. The GRP Peace Panel, respondents in these consolidated cases,
has been disbanded by the President, along with the resounding declaration that "the MOA-AD will not be signed in
its present form, or in any other form." The Memorandum issued by Executive Secretary Ermita to the Solicitor
General is unequivocal: "No matter what the Supreme Court ultimately decides, the government will not sign the
MOA."

The subsequent events were sufficient to alter the course of these judicial proceedings. The President's decision not
to sign the MOA-AD may even be interpreted as a rectification of flawed peace negotiations by the panel. But to this
Court, it is clearly a supervening event that affects the ripeness of the case for adjudication. With an abandoned and
unsigned MOA-AD and a dissolved peace Panel, any purported controversy has virtually disappeared. Judicial review
cannot be exercised where the incipient actual controversy does not remain extant until the termination of the case;
this Court cannot provide reliefs for controversies that are no longer there.

After the mandamus aspect of the initial petitions had been satisfied, what remains are basically the petitions for
certiorari and prohibition.26 The reliefs prayed for include the declaration of nullity of the MOA-AD and the prohibition
on the members of the Peace Panel from signing the MOA-AD.

These reliefs are unavailing, because the peace Panel has been dissolved and, by the nature of things, rendered
permanently unable to sign

any agreement. On the other hand, the MOA-AD sought to be nullified does not confer any rights nor imposes any
duties. It is, as of today, non-existent.

In Montesclaros v. COMELEC,27 we held that a proposed bill is not subject to judicial review, because it is not a law.
A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill having no legal
 9

effect violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or
unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress.
This ruling finds a parallel in a proposed agreement to be entered into by the Executive Department which has been
aborted, unsigned, and "will not be signed in its present form or in any other form."

iii. Mootness

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 value. Generally, courts decline jurisdiction over such case, or
dismiss it on ground of mootness.28

Thus, in Gonzales v. Narvasa,29 where the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) was questioned, the Court dismissed the petition because by then, the PCCR had
ceased to exist, having finished its work and having submitted its recommendations to then President Estrada. In
Abbas v. COMELEC,30 we refused to rule on a perceived potential conflict between provisions of the Muslim Code
and those of the national law.

However, it is axiomatic that 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 involved;
third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and
the public; or fourth, when the case is capable of repetition yet evasive of review.31

As to the first exception, there is no violation of the Constitution that will justify judicial review despite mootness,
because the MOA-AD has not been signed - and will not be signed. The eminent Justice Antonio T. Carpio, in his
separate opinion, even as he expressed fears of numerous "drastic changes" in the Constitution, acknowledges that
these will take place only IF the MOA-AD will be signed. The scholarly ponencia concludes with the finding that the
MOA-AD is unconstitutional, obviously referring to its provisions. So does the separate opinion of Justice Ruben T.
Reyes. But, to repeat, the MOA-AD is, as of today, non-existent. Thus, as it is, these dreaded constitutional
infractions are, at best, anticipatory, hypothetical or conjectural.

Neither will the second exception apply. The issue of paramount public interest will arise only IF the MOA-AD is
signed. With the Peace Panel dissolved, and with the unequivocal pronouncement of the President that the MOA-AD
will not be signed, there is no occasion to speak of the exceptional or extraordinary character of the controversy as
would render the case ripe for resolution and susceptible of judicial determination.

Given the events that led to the issuance by the Court of a TRO in order to stop the signing of the MOA-AD in
Malaysia on August 5, 2008, it would appear that there is a need for the Court to formulate controlling principles,
precepts and rules to guide the bench, the bar and the public - particularly a peace negotiating panel - in future peace
talks. However, a scrutiny of the factual antecedents of this case reveals that no such imperative exists.

It is well to note that Executive Order No. 3, which created the GRP Peace Panel, explicitly identifies the Constitution
as the basic legal framework for the peace negotiations. It states that the GRP Peace Panel was created with the
primary objective to attain "a just, comprehensive and enduring peace under a rule of law and in accordance with
constitutional processes,"32 with "a need to further enhance the contribution of civil society to the comprehensive
peace process by institutionalizing the people's participation."33 The same Executive Order provides sufficient
standards to guide the GRP Peace Panel in the performance of its avowed work.

Then, there is the March 1, 2001 Memorandum of Instructions from the President, followed by the Memorandum of
Instructions dated September 8, 2003. Common to the instructions is the provision that the negotiation shall be
conducted "in accordance with the mandate of the Constitution, the Rule of Law, and the Principles of Sovereignty
and Territorial Integrity of the Republic of the Philippines." These are adequate guidelines for the GRP Peace panel; it
would be superfluous for the Court to issue guidelines which, presumably, will be similar to the ones already in
existence, aside from possibly trenching on the constitutional principle of separation of powers.

If the respondents-members of the GRP Peace Panel, in the conduct of the negotiation, breached these standards or
failed to heed the instructions, it was not for lack of guidelines. In any event, the GRP Peace Panel is now disbanded,
and the MOA-AD unsigned and "not to be signed." There is no necessity for this Court to issue its own guidelines as
these would be, in all probability, repetitive of the executive issuances.

The fourth exception, that the issue is "capable of repetition yet evasive of review," is likewise inapplicable in this
case. In this connection, we recall Sanlakas v. Reyes,34 where the Court dismissed the petitions which assailed as
 10

unconstitutional Proclamation No. 427, declaring a state of rebellion, and General Order No. 4, after the President
had issued Proclamation no. 435 declaring that the state of rebellion had ceased to exist.

Apart from the brilliant ponencia of Justice Dante O. Tinga, particularly illuminating is the separate opinion of Chief
Justice Artemio V. Panganiban when he wrote:

While the Petitions herein have previously embodied a live case or controversy, they now have been rendered extinct
by the lifting of the questioned issuances. Thus, nothing is gained by breathing life into a dead issue.

Moreover, without a justiciable controversy, the Petitions have become pleas for declaratory relief, over which the
Supreme Court has no original jurisdiction. Be it remembered that they were filed directly with this Court and thus
invoked its original jurisdiction.

On the theory that the "state of rebellion" issue is "capable of repetition yet evading review," I respectfully submit that
the question may indeed still be resolved even after the lifting of the Proclamation and Order, provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct result of their
issuance.

In the present case, petitioners have not shown that they have been or continue to be directly and pecuniarily
prejudiced or damaged by the Proclamation and Order. Neither have they shown that this Court has original
jurisdiction over petitions for declaratory relief. I would venture to say that, perhaps, if this controversy had emanated
from an appealed judgment from a lower tribunal, then this Court may still pass upon the issue on the theory that it is
"capable of repetition yet evading review," and the case would not be an original action for declaratory relief.

In short, the theory of "capable of repetition yet evading review" may be invoked only when this Court has
jurisdiction over the subject matter. It cannot be used in the present controversy for declaratory relief, over
which the Court has no original jurisdiction.

Given the similar factual milieu in the case at bench, I submit that judicial review of the instant controversy cannot be
justified on the principle that the issue is "capable of repetition yet evasive of review."

II. SUBSTANTIVE

I respectfully submit that the Court should view this case from the perspective of executive power, and how it was
actually exercised in the formulation of the GRP Peace Panel until the challenged MOA-AD was crafted in its present
abandoned form.

The President is the Chief Executive of the Republic and the Commander-in-Chief of the armed forces of the
Philippines.

Section 1, Article VII of the Philippine Constitution provides: "The executive power shall be vested in the President of
the Philippines." Additionally, Section 18, Article VII, states:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or
suspension which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

In Sanlakas v. Reyes,35 we held that the above provision grants the President, as Commander-in-Chief, a sequence
of graduated powers, to wit: (1) the calling out power, (2) the power to suspend the privilege of the writ of habeas
corpus, and (3) the power to declare martial law. Thus:
 11

In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an
actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in
Integrated Bar of the Philippines v. Zamora, "[t]hese conditions are not required in the exercise of the calling out
power. The only criterion is that 'whenever it becomes necessary,' the President may call the armed forces 'to prevent
or suppress lawless violence, invasion or rebellion.'"

Implicit in these is the President's power to maintain peace and order. In fact, in the seminal case of Marcos v.
Manglapus,36 we ruled:

[T]his case calls for the exercise of the President's powers as protector of the peace. The power of the President to
keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading
the State against external and internal threats to its existence. The President is not only clothed with extraordinary
powers in times of emergency, but is also tasked with extraordinary powers in times of emergency, but is also tasked
with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times
when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-
chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said
to exclude the President's exercising as Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and
maintain public order and security.

Undoubtedly, then, the President has power to negotiate peace with the MILF, and to determine in what form and
manner the peace process should be conducted.

In the exercise of this power, the President issued Executive Order No. 3, where she mapped out the principles to be
followed in the comprehensive peace process: (a) community-based and defined by all Filipinos as one community,
(b) a new social compact establishing a genuinely pluralistic society, and (c) a principled and peaceful resolution to
the internal armed conflicts.37 In Section 4 thereof, the president identified the 6 paths to peace, with processes being
interrelated and not mutually exclusive, and must be pursued simultaneously in a coordinated and integrated fashion:
(a) pursuit of social, economic and political reforms, (b) consensus-building and empowerment for peace, (c)
peaceful, negotiated settlement with the different rebel groups, (d) programs for the reconciliation, reintegration into
mainstream society and rehabilitation, (e) addressing concerns arising from continuing armed hostilities, and (f)
building and nurturing a climate conducive to peace.

Executive Order No. 3, together with the Memorandum of Instructions of March 1, 2001 and the Memorandum of
Instructions of September 8, 2003, constitutes the mandate of the GRP Peace panel. It was within the parameters of
this mandate that the GRP Peace panel was to negotiate with the MILF and arrive at a Comprehensive Peace
Agreement. It was pursuant to these strictures that the MOA-AD was crafted, initialed and scheduled for signing.

Even as the petitioners and petitioners-in-intervention roundly condemn the MOA-AD, as currently worded, to have
violated constitutional and statutory principles - and assail the GRP Peace Panel for having acted with grave abuse of
discretion because of its failure to abide by its mandate - it is noteworthy they do not raise any question about the
validity of Executive Order No. 3 and the Instructions issued by the President.

Considering the events that have supervened since the filing of the initial petition and the issuance by this Court of a
TRO, it is suggested that the angle of vision for the discussion of the substantive issues in this case should be from
the perspective of the relief/s that this Court can grant the parties, taking into account their respective prayers. These
are:

1. Mandamus.

a) Three petitions and two petitions-in-intervention praying for a writ of mandamus, to compel the production of the
official copy of the MOA-AD, the petitioners invoking their right to information. These petitions are now mooted,
because the requested documents have already been produced.

b) Two respondents-intervenors who pray that the Executive Department be directed to sign the MOA-AD and to
continue with the peace negotiations. With the definite pronouncement of the President that the MOA-AD will not be
signed in its present form or in any other form, this prayer cannot be granted, because the Court cannot compel a
party to enter into an agreement.
 12

2. Declaratory Relief. - One petition for declaratory relief which may not be granted because the Court has no original
jurisdiction over petitions for declaratory relief.38

3. Certiorari and Prohibition. One Petition for Certiorari and twelve petitions for prohibition, including the petitions-in-
intervention, seek a declaration of nullity of the MOA-AD (for being unconstitutional), a writ of certiorari against the
members of the GRP Peace Panel for having acted with grave abuse of discretion, and a writ of prohibition to prevent
the signing of the MOA-AD.

There's the rub. Because the MOA-AD will not be signed "in its present form, or in any other form," certiorari will not
lie. The Court cannot review an inexistent agreement, an unborn contract that does not purport to create rights or
impose duties that are legally demandable. Neither will the remedy of prohibition lie against a GRP Peace Panel that
no longer exists. To do so would be to flog a dead horse.

The ponencia would wish to get around this inescapable truth by saying: "The MOA-AD not being a document that
can bind the Philippines under international law notwithstanding, respondents' almost consummated act of
guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion."

With due respect, I beg to disagree. Grave abuse of discretion can characterize only consummated acts (or
omissions), not an "almost (but not quite) consummated act."

Chief Justice Panganiban, in his separate opinion in Sanlakas, writes: "The first requirement, the existence of a live
case or controversy, means that the existing litigation is ripe for resolution and susceptible of judicial determination,
as opposed to one that is conjectural or anticipatory, hypothetical or feigned."

It is not the province of this Court to assume facts that do not exist.
It is for the foregoing reasons that I respectfully register my dissent. I vote to DENY the petitions.

BELLIGERENT OCCUPATION/DOCTRINE OF SUSPENDED ALLEGIANCE

"In G. R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed
by Anastacio Laurel and based on the theory that a Filipino citizen who adhered to the enemy giving the latter aid and
comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by
article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2) that
there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic:

"(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent
allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this
absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a
foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in
return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign.
(Carlisle vs. United States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States
in the case of Thraser, 6 Web. Works, 526);

"Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy to
their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the
sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the
cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil.,
285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that
the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society
which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be
destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty
cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-
called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control
and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of
the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war,
'although the former is in fact prevented from exercising the supremacy over them' is one of the 'rules of international
law of our times'; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles
23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not
suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government
 13

or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on which the
whole fabric of the petitioner's contention rests;

"Considering that the conclusion that the sovereignty of the United States was suspended in Castine, set forth in the
decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in
the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection
with the question, not of sovereignty, but of the existence of a government de facto therein and its power to
promulgate rules and laws in the occupied territory, must have been based, either on the theory adopted
subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory does not transfer
the sovereignty, or on the old theory that such occupation transfers the sovereignty to the occupant; that, in the first
case, the word 'sovereignty' used therein should be construed to mean the exercise of the rights of sovereignty,
because as this remains vested in the legitimate government and is not transferred to the occupier, it cannot be
suspended without putting it out of existence or divesting said government thereof; and that in the second case, that
is, if the said conclusion or doctrine, refers to the suspension of the sovereignty itself, it has become obsolete after
the adoption of the Hague Regulations in 1907, and therefore it can not be applied to the present case;

"Considering that even adopting the words 'temporary allegiance,' repudiated by Oppenheim and other publicists, as
descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military
government established over them, such allegiance may, at most, be considered similar to the temporary allegiance
which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection
he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a
government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same
way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own
legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and that
if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in
return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state
would, on one hand, ipso facto acquire the citizenship thereof since he has to obey, with certain exceptions, the laws
of that country which enforce public order and regulate the social and commercial life, in return for the protection he
receives, and would, on the other hand, lose his original citizenship, because he would not be bound to obey most of
the laws of his own government or sovereign, and would not receive, while in a foreign country, the protection he is
entitled to in his own;

"Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate
government in the territory occupied by the enemy military forces, because the authority of the legitimate power to
govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe
the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military
occupation (Co Kim Cham vs. Valdez Tan Keh and Dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative or not applicable to the government established by
the occupant; that the crimes against national security, such as treason and espionage, inciting to war,
correspondence with hostile country, flight to enemy's country, as well as those against public order, such as
rebellion, sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes against the legitimate government, are also
suspended or become inapplicable as against the occupant, because they cannot be committed against the latter
(Peralta vs. Director of Prisons, supra); and that, while the offenses against public order to be preserved by the
legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted
by him, were also inoperative as against the ousted government for the latter was not responsible for the preservation
of the public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason
committed against the national security of the legitimate government, because the inhabitants of the occupied
territory were still bound by their allegiance to the latter during" the enemy occupation;

"Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely
prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of
the country, he has, nevertheless, all the powers of a de facto government and may, at his pleasure, either change
the existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is
necessary for the occupier to do so for the control of the country and the protection of his army, subject to the
restrictions or limitations imposed by the Hague Regulations, the usages established by civilized nations, the laws of
humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules
of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are
obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate
government which have not been adopted, as well and those which, though continued in force, are in conflict with
such laws and orders of the occupier, shall be considered as suspended or not in force and binding upon said
inhabitants;
 14

"Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or
subject to his government or sovereign does not demand from him a positive action, but only passive attitude or
forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a
corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and
give aid and comfort to him; because it is evident that such action is not demanded by the exigencies of the military
service or not necessary for the control of the inhabitants and the safety and protection of his army, and because it is
tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign;
and that, therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through
force, threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a hero,
or submit thereto without becoming a traitor;

"Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences
for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public
conscience, for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to
fight against their own government without the latter incurring the risk of being prosecuted for treason, and even
compel those who are not to aid them in their military operation against the resisting enemy forces in order to
completely subdue and conquer the whole nation, and thus deprive them all of their own independence or
sovereignty such theory would sanction the action of invaders in forcing the people of a free and sovereign country to
be a party in the nefarious task of depriving themselves of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to commit a political suicide;

"(2) Considering that the crime of treason against the government of the Philippines defined and penalized in article
114 of the Penal Code, though originally intended to be a crime against said government as then organized by
authority of the sovereign people of the United States, exercised through their authorized representative, the
Congress and the President of the United States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by
virtue of the provision of section 2, Article XVI thereof, which provides that 'All laws of the Philippine Islands * * * shall
remain operative, unless inconsistent with this Constitution * * * and all references in such laws to the Government or
officials of the Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution;'

"Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject
to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution,
was recognized not only by the Legislative Department or Congress of the United States in approving the
Independence Law above quoted and the Constitution of the Philippines, which contains the declaration that
'Sovereignty resides in the people and all government authority emanates from them' (section 1, Article II), but also
by the Executive Department of the United States; that the late President Roosevelt in one of his messages to
Congress said, among others, 'As I stated on August 12, 1943, the United States in practice regards the Philippines
as having now the status as a government of other independent nations in fact all the attributes of complete and
respected nationhood' (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the
Supreme Court of the United States in many cases, among them in the case of Jones vs. United States (137 U. S.,
202; 34 Law. ed., 691, 696) that the question of sovereignty is 'a purely political question, the determination of which
by the legislative and executive departments of any government conclusively binds the judges, as well as all ofher
officers, citizens and subjects of the country.'

"Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final
and complete withdrawal of the sovereignty of the United States 'All citizens of the Philippines shall owe allegiance to
the United States', was one of the few limitations of the sovereignty of the Filipino people retained by the United
States, but these limitations do not do away or are not inconsistent with said sovereignty, in the same way that the
people of each State of the Union preserves its own sovereignty although limited by that of the United States
conferred upon the latter by the States; that just as to reason may be committed against the Federal as well as
against the State Government, in the same way treason may have been committed during the Japanese occupation
against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth; and
that the change of our form of government from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of our Constitution provides that 'The government
established by this Constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the
Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines';
"This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's petition, as it
is hereby denied, for the reasons above set forth and for others to be stated in the said opinion, without prejudice to
 15

concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. Justice
Perfecto concurs in a separate opinion."

PRECAUTIONARY PRINCIPLE

Section 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

Section 2. Standards for application. - In applying the precautionary principle, the following factors, among others,
may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to
the environment without legal consideration of the environmental rights of those affected.

The Supreme Court has long held that under international law, executive agreements and treaties are practically
the same in their ability to bind the Philippine government to an agreement with another government. “[T]here is no
difference between treaties and executive agreements in their binding effect upon states concerned,” the court said.
A treaty needs the concurrence of the Senate in order to be valid while an executive agreement needs only the
signature of the President or his representative without need of Senate concurrence. The Edca was signed by
Defense Secretary Voltaire Gazmin and wasn’t submitted for Senate ratification.
The Constitution says: “No treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate.” However, the Supreme Court has explained that “executive
agreements” are not subject to that requirement. “Treaties are formal documents which require ratification by the
Senate, while executive agreements become binding through executive action without the need of a vote by the
Senate or by Congress.”
A full-fledged treaty is required only when an agreement involves changes in Philippine national policy, and the
agreement must therefore be submitted to the Senate for ratification. On the other hand, when an agreement merely
implements already existing treaty obligations, laws or policy, an executive agreement will suffice.–

TREATY DISTINGUISHED FROM EXECUTIVE AGREEMENT

Black’s Law Dictionary defines a loan as “[d]elivery by one party to, and receipt by, another party of sum of money
upon agreement, express or implied, to repay it with or without interest.”5 If the loan is transacted between two
states, then it becomes an international agreement. Under the Constitution, a foreign loan would take one of two
natures: (1) If it is a foreign loan per se, meaning by itself, unconnected with other matters, then it requires prior
concurrence of the Monetary Board. It could be designated as an executive agreement;6 (2) If it is a foreign loan
connected with other matters, then it is in effect a treaty, which requires Senate concurrence.7 The Constitution
makes no mention of “executive agreement,” particularly as an exemption to the general rule of Senate concurrence
for any international agreement. Black’s Law Dictionary defines an executive agreement as “[a] treaty-like agreement
with another country in which the President may bind the country without submission to the Senate,”8 citing the 1937
case of U.S. v. Belmont.9 We inherited this executive agreement doctrine during the American colonial regime.

The 1935 Constitution, although it contained a provision for Senate concurrence in a treaty, did not include the
phrase “or international agreement,” which is now found in the equivalent provision of the 1987 Constitution.10 For
this reason, the Records of the 1986 Constitutional Commission show that initially, Commissioner Sarmiento moved
that the phrase “or international agreement” should be deleted, but later withdrew his amendment, after
Commissioner Concepcion said that international agreements never bind the Philippines, unless the Philippines
ratifies them. 11 Commissioner Aquino asked whether “executive agreements” would also need confirmation.
Commissioner Concepcion replied that executive agreements are generally made to implement a treaty already
enforced, or to determine the details for the implementation of the treaty. Commissioner Aquino then proposed to
amend the provision, so that it would read “No treaty or international agreement, except executive agreement, shall
be valid and effective.” But she later withdrew this amendment for being unnecessary, after Commissioner Bernas
quoted a passage from the landmark case of Commissioner of Customs, et al. v. Eastern Sea Trading,12 discussed
below.13 Commissioner Bernas, interpreting Eastern Sea,14 made the point that a treaty has a permanent nature,
while an executive agreement has a temporary nature. Commissioner Aquino clarified that no Senate concurrence is
needed for an executive agreement, such as a commercial agreement undertaken after prior authorization from
Congress. Commissioner Bernas agreed that if an executive agreement has been reached after prior Congress
authorization, then there is no need for Senate concurrence.15 Under the rules of constitutional construction, the
intent of both the framers (meaning the Constitutional Commission) and adopters (meaning the people) is controlling.
In case of conflict, the intent of the adopters will control. Since the people are represented by the Supreme Court, this
means that the Supreme Court, in the exercise of the power of judicial review, is not bound by the opinions expressed
during deliberation of the constitutional commission. Thus, in the 1974 case of Aquino v. Enrile, the Supreme Court
held that the intent of the commission is not controlling by itself, but merely sheds light on the intent of the framers.
 16

The distinction drawn in the records of the constitutional commission between a treaty as permanent in nature, and
an executive agreement as temporary in nature no longer stands alone. The distinction now goes beyond this
simplistic formula, as explained below. Under Memorandum Circular No. 8917 dated 19 December 1988, “Providing
for the Procedure for the Determination of International Agreements as Executive Agreements,” then Executive
Secretary Catalino Macaraig, Jr., by authority of the President, said: It is an accepted principle recognized in
Philippine jurisprudence that international agreements which have the nature of an executive agreement do not
require the concurrence of the Senate to be valid and effective. ... [T]he matter should be brought to the attention of
the Secretary of the Department of Foreign Affairs by a memorandum of the official responsible for the negotiation of
said agreement. The said memorandum shall be referred to the Legal Adviser of the said Department and the
Assistant Secretary in charge of the liaison between the Department of Foreign Affairs and the Senate, for their
comment. Whenever circumstances permit, consultations shall be made with the leadership and members of the
Senate. The Secretary of the Department of Foreign Affairs shall forthwith make the proper recommendation to the
President.18 Under Executive Order No. 459,19 “Providing for the Guidelines in the Negotiation of International
Agreements and Its Ratification” [sic] dated 25 November 1997, Section 9 provides: “The Department of Foreign
Affairs shall determine whether an agreement is an executive agreement or a treaty.”20

BALAG VS SENATE

This is a petition for certiorari and prohibition with prayer for issuance of a temporary restraining order (TRO) and/or
writ of preliminary injunction seeking to annul, set aside and enjoin the implementation of Senate P.S. Reso1ution
(SR) No. 5041 and the October 18, 2017 Order2 (Contempt Order) of the Senate Committee on Public Order and
Dangerous Drugs citing Arvin Balag (petitioner) in contempt.

On September 17, 2017, Horacio Tomas T. Castillo III (Horacio III),3 a first year law student of the University of Sto.
Tomas (UST), died allegedly due to hazing conducted by the Aegis Juris Fraternity (AJ Fraternity) of the same
university.

On September 19, 2017, SR No. 504,4 was filed by Senator Juan Miguel Zubiri (Senator Zubiri)5 condemning the
death of Horacio III and directing the appropriate Senate Committee to conduct an investigation, in aid of legislation,
to hold those responsible accountable.

On September 20, 2017, SR No. 510, entitled: "A Resolution Directing the Appropriate Senate Committees to
Conduct An Inquiry, In Aid of Legislation, into the Recent Death of Horacio Tomas Castillo III Allegedly Due to
Hazing-Related Activities" was filed by Senator Paolo Benigno Aquino IV.6

On the same day, the Senate Committee on Public Order and Dangerous Drugs chaired by Senator Panfilo Lacson
(Senator Lacson) together with the Committees on Justice and Human Rights and Constitutional Amendment and
Revision of Codes, invited petitioner and several other persons to the Joint Public Hearing on September 25, 2017 to
discuss and deliberate the following: Senate Bill Nos. 27,7 199,8 223,9 1161,10 1591,11 and SR No. 504.

Petitioner, however, did not attend the hearing scheduled on September 25, 2017. Nevertheless, John Paul Solano, a
member of AJ Fraternity, Atty. Nilo T. Divina, Dean of UST Institute of Civil Law and Arthur Capili, UST Faculty
Secretary, attended the hearing and were questioned by the senate committee members.

On the same date, Spouses Carmina T. Castillo and Horacio M. Castillo, Jr. (Spouses Castillo), parents of Horacio III,
filed a Criminal Complaint12 for Murder and violation of Section 4 of Republic Act (R.A.) No. 8049,13 before the
Department of Justice (DOJ) against several members of the AJ Fraternity, including petitioner. On October 9, 2017,
Spouses Castillo filed a Supplemental Complaint-Affidavit14 before the DOJ citing the relevant transcripts of
stenographic notes during the September 25, 2017 Senate Hearing.

On October 11, 2017, Senator Lacson as Chairman of Senate Committee on Public Order and Dangerous Drugs,
and as approved by Senate President Aquilino Pimentel III, issued a Subpoena Ad Testificandum15 addressed to
petitioner directing him to appear before the committee and to testify as to the subject matter under inquiry.16 Another
Subpoena Ad Testificandum17 was issued on October 17, 2017, which was received by petitioner on the same day,
requiring him to attend the legislative hearing on October 18, 2017.

On said date, petitioner attended the senate hearing. In the course of the proceedings, at around 11:29 in the
morning, Senator Grace Poe (Senator Poe) asked petitioner if he was the president of AJ Fraternity but he refused to
answer the question and invoked his right against self-incrimination. Senator Poe repeated the question but he still
refused to answer. Senator Lacson then reminded him to answer the question because it was a very simple question,
 17

otherwise, he could be cited in contempt. Senator Poe retorted that petitioner might still be clinging to the supposed
"Code of Silence" in his alleged text messages to his fraternity. She manifested that petitioner's signature appeared
on the application for recognition of the AJ Fraternity and on the organizational sheet, indicating that he was the
president. Petitioner, again, invoked his right against self-incrimination. Senator Poe then moved to cite him in
contempt, which was seconded by Senators Joel Villanueva (Senator Villanueva) and Zubiri. Senator Lacson ruled
that the motion was properly seconded, hence, the Senate Sergeant-at-arms was ordered to place petitioner in
detention after the committee hearing. Allegedly, Senator Lacson threatened to order the detention of petitioner in
Pasay City Jail under the custody of the Senate Sergeant-at-arms and told him not to be evasive because he would
be merely affirming school records.

A few minutes later, at around 12:09 in the afternoon, Senators Lacson and Poe gave petitioner another chance to
purge himself of the contempt charge. Again, he was asked the same question twice and each time he refused to
answer.18

Thereafter, around 1:19 in the afternoon, Senator Villanueva inquired from petitioner whether he knew whose
decision it was to bring Horacio III to the Chinese General Hospital instead of the UST Hospital. Petitioner apologized
for his earlier statement and moved for the lifting of his contempt. He admitted that he was a member of the AJ
Fraternity but he was not aware as to who its president was because, at that time, he was enrolled in another school.

Senator Villanueva repeated his question to petitioner but the latter, again, invoked his right against self-incrimination.
Petitioner reiterated his plea that the contempt order be lifted because he had already answered the question
regarding his membership in the AJ Fraternity. Senator Villanueva replied that petitioner's contempt would remain.
Senator Lacson added that he had numerous opportunities to answer the questions of the committee but he refused
to do so. Thus, petitioner was placed under the custody of the Senate Sergeant-at-arms. The Contempt Order reads:

RE: PRIVILEGE SPEECH OF SEN. JUAN MIGUEL ZUBIRI ON THE DEATH OF HORATIO "ATIO" CASTILLO III
DUE TO HAZING DELIVERED ON 20 SEPTEMBER 2017;

PS RES. NO. 504: RESOLUTION CONDEMNING IN THE STRONGEST SENSE THE DEATH OF FRESHMAN LAW
STUDENT HORATIO TOMAS CASTILLO III AND DIRECTING THE APPROPRIATE SENATE COMMITTEES TO
CONDUCT AN INVESTIGATION, IN AID OF LEGISLATION, TO HOLD ACCOUNTABLE THOSE RESPONSIBLE
FOR THIS SENSELESS ACT (SEN. ZUBIRI); AND

SENATE BILLS NOS. 27, 199, 223, 1161, AND 1591.

For testifying falsely and evasively before the Committee on [October 18, 2017] and thereby delaying, impeding and
obstructing the inquiry into the death of Horacio "Atio" Castillo III. Thereupon the motion of Senator Grace Poe and
seconded by Senator Joel Villanueva and Senator Juan Miguel Zubiri, the Committee hereby cites MR. ARVIN
BALAG in contempt and ordered arrested and detained at the Office of the Sergeant at-Arms until such time that he
gives his true testimony, or otherwise purges himself of that contempt.

The Sergeant-at-Arms is hereby directed to carry out and implement this Order and make a return hereof within
twenty-four (24) hours from its enforcement.

ISSUE

WHETHER RESPONDENT SENATE COMMITTEES ACTED WITH GRAVE ABUSE OF DISCRETION IN

CONDUCTING THE LEGISLATIVE INQUIRY AND CITING PETITIONER IN CONTEMPT.

Petitioner chiefly argues that the legislative inquiry conducted by respondent committees was not in aid of legislation;
rather, it was in aid of prosecution. He posits that the purpose of SR No. 504 was to hold accountable those
responsible for the senseless act of killing Horacio III, and not to aid legislation. Petitioner underscores that the
transcripts during the September 25, 2017 committee hearing were used in the criminal complaint filed against him,
which bolsters that the said hearings were in aid of prosecution. He insists that the senate hearings would violate his
right to due process and would pre-empt the findings of the DOJ with respect to the criminal complaint filed against
him.

Petitioner also asserts that he properly invoked his right against self incrimination as the questions propounded by
Senator Poe regarding the officers, particularly the presidency of the AJ Fraternity, were incriminating because the
answer thereto involves an element of the crime of hazing. Despite the questions being incriminating, he,
 18

nonetheless, answered them by admitting that he was a member of the AJ Fraternity but he did not know of its
current president because he transferred to another school. He adds that his right to equal protection of laws was
violated because the other resource persons who refused to answer the questions of the Senate committees were
not cited in contempt.

Finally, petitioner prays for the issuance of TRO and/or writ of preliminary injunction because the Senate illegally
enforced and executed SR No. 504 and the Contempt Order, which caused him grave and irreparable injury as he
was deprived of his liberty without due process of law. He contends that respondents did not exercise their power of
contempt judiciously and with restraint.

In their Comment,20 respondents, through the Office of the Senate Legal Counsel, countered that the purpose of the
hearing was to re-examine R.A. No. 8049; that several documents showed that the legislative hearing referred to
Senate Bill Nos. 27, 199, 223, 1161, and 1591; that the statement of the senators during the hearing demonstrated
that the legislative inquiry was conducted in aid of legislation; and that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation (Senate Rules) were duly published.

Respondents emphasized that petitioner was first asked on October 18, 2017, around 11:29 in the morning, whether
he was the president of the AJ Fraternity, based on school records, and he denied it; he was asked again at 12:09 in
the afternoon whether he was the president of the AJ Fraternity but he still refused to answer the question; at 1:19 in
the afternoon, he admitted that he was a member of the fraternity but still he refused to say whether or not he was the
president, only saying that he is already studying in another school. On November 6, 2017, at the resumption of the
hearing, petitioner was still unresponsive. According to respondents, these acts were contemptuous and were valid
reasons to cite petitioner in contempt.

Respondents highlighted that there were numerous documents showing that petitioner was the president of the AJ
Fraternity but he continually refused to answer. They added that petitioner cannot purge himself of contempt by
continually lying.

Further, respondents underscored that the question propounded to petitioner was not incriminating because an
admission that he was an officer of the AJ Fraternity would not automatically make him liable under R.A. No. 8049.
They emphasized that the Senate respected petitioner's right to due process because the hearing was conducted in
aid of legislation; that the senators explained why he would be cited in contempt; that he was given several chances
to properly purge himself from contempt; and that no incriminating question was asked. Respondents concluded that
there was no violation of petitioner's right to equal protection of laws because the other resource persons did not
invoke their right against self-incrimination when asked if they were the officers of the AJ Fraternity.

Respondents likewise explained that the legislative inquiry in aid of legislation may still continue in spite of any
pending criminal or administrative cases or investigation. They countered that the actions for certiorari and prohibition
were not proper because there were existing remedies that petitioner could have availed of, particularly: a motion to
reverse the contempt charge filed within 7 days under Section 18 of the Senate Rules; and a petition for habeas
corpus as petitioner ultimately would seek for his release from detention.

Finally, respondents asserted that the recourse for the issuance of TRO and/or writ of preliminary injunction was not
proper because petitioner was actually asking to be freed from detention, and this was contemplated under a status
quo ante order. For invoking the wrong remedy, respondents concluded that a TRO and/or writ of preliminary
injunction should not be issued.

In its Resolution21 dated December 12, 2017, the Court ordered in the interim the immediate release of petitioner
pending resolution of the instant petition.

In its Manifestation22 dated February 20, 2018, respondents stated that on January 23, 2018, the Committees on
Public Order and Dangerous Drugs and Justice and Human Rights jointly submitted Committee Report Nos. 232 and
233 recommending that Senate Bill No. 1662 be approved in substitution of Senate Bill Nos. 27, 199, 223, 1161,
1591, and 1609. The said committee reports were approved by the majority of their members.23 On February 12,
2018, the Senate passed on 3rd reading Senate Bill No. 1662, entitled: An Act Amending Republic Act No. 8049 to
Strengthen the Law on Hazing and Regulate Other Forms of Initiation Rites of Fraternities, Sororities, and Other
Organizations, Providing Penalties Therefor, and for Other Purposes, with its short title as "Anti-Hazing Act of 2018."

The Court's Ruling

The petition is moot and academic.

 19

The existence of an actual case or controversy is a necessary condition precedent to the court's exercise of its power
of adjudication. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite
legal claims between the parties that is susceptible or ripe for judicial resolution. In the negative, a justiciable
controversy must neither be conjectural nor moot and academic. There must be a definite and concrete dispute
touching on the legal relations of the parties who have adverse legal interests. The reason is that the issue ceases to
be justiciable when a controversy becomes moot and academic; otherwise, the court would engage in rendering an
advisory opinion on what the law would be upon a hypothetical state of facts.24

In this case, the Court finds that there is no more justiciable controversy. Petitioner essentially alleges that
respondents unlawfully exercised their power of contempt and that his detention was invalid. As discussed earlier, in
its resolution dated December 12, 2017, the Court ordered in the interim the immediate release of petitioner pending
resolution of the instant petition. Thus, petitioner was no longer detained under the Senate's authority.

Then, on January 23, 2018, the Committees on Public Order and Dangerous Drugs and Justice and Human Rights
jointly adopted Committee Report Nos. 232 and 233 and submitted the same to the Senate. Committee Report No.
232 referred to the findings of respondent committees in the inquiry conducted in aid of legislation; while Committee
Report No. 233 referred to the recommendation that Senate Bill No. 1662 be approved in substitution of Senate Bill
Nos. 27, 199, 223, 1161, 1591, and 1609. On February 12, 2018, the Senate passed on yd reading Senate Bill No.
1662.

Evidently, respondent committees have terminated their legislative inquiry upon the approval of Committee Report
Nos. 232 and 233 by the majority of its members. The Senate even went further by approving on its 3rd reading the
proposed bill, Senate Bill No. 1662, the result of the inquiry in aid of legislation. As the legislative inquiry ends, the
basis for the detention of petitioner likewise ends.

Accordingly, there is no more justiciable controversy regarding respondents' exercise of their constitutional power to
conduct inquiries in aid of legislation, their power of contempt, and the validity of petitioner's detention. Indeed, the
petition has become moot and academic.

Nevertheless, there were occasions in the past when the Court passed upon issues although supervening events had
rendered those petitions moot and academic. After all, the moot and academic principle is not a magical formula that
can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and
academic.25 This Court may assume jurisdiction over a case that has been rendered moot and academic by
supervening events when any of the following instances are present:
(1)Grave constitutional violations;
(2)Exceptional character of the case;
(3)Paramount public interest;
(4)The case presents an opportunity to guide the bench, the bar, and the public; or
(5)The case is capable of repetition yet evading review.26

In David v. Arroyo,27 several petitions assailed the constitutionality of the declaration of a state of national emergency
by then President Gloria Macapagal-Arroyo. During the pendency of the suits, the said declaration was lifted.
However, the Court still decided the cases on the merits because the issues involved a grave violation of the
Constitution and it affected public interest.

Similarly, in Republic v. Principalia Management and Personnel Consultants, Inc.,28 the controversy therein was
whether the Regional Trial Court (RTC) had jurisdiction over an injunction complaint filed against the Philippine
Overseas Employment Administration (POEA) regarding the cancellation of the respondent's license. The respondent
then argued that the case was already moot and academic because it had continuously renewed its license with the
POEA. The Court ruled that although the case was moot and academic, it could still pass upon the main issue for the
guidance of both bar and bench, and because the said issue was capable of repetition.

Recently, in Regulus Development, Inc. v. Dela Cruz,29 the issue therein was moot and academic due to the
redemption of the subject property by the respondent. However, the Court ruled that it may still entertain the
jurisdictional issue of whether the RTC had equity jurisdiction in ordering the levy of the respondent's property since it
posed a situation capable of repetition yet evading judicial review.

In this case, the petition presents a critical and decisive issue that must be addressed by Court: what is the duration
of the detention for a contempt ordered by the Senate?
 20

This issue must be threshed out as the Senate's exercise of its power of contempt without a definite period is capable
of repetition. Moreover, the indefinite detention of persons cited in contempt impairs their constitutional right to liberty.
Thus, paramount public interest requires the Court to determine such issue to ensure that the constitutional rights of
the persons appearing before a legislative inquiry of the Senate are protected.

The contempt order issued against petitioner simply stated that he would be arrested and detained until such time
that he gives his true testimony, or otherwise purges himself of the contempt. It does not provide any definite and
concrete period of detention. Neither does the Senate Rules specify a precise period of detention when a person is
cited in contempt.

Thus, a review of the Constitution and relevant laws and jurisprudence must be conducted to determine whether
there is a limitation to the period of detention when the Senate exercises its power of contempt during inquiries in aid
of legislation.
Period of imprisonment for contempt during
inquiries in aid of legislation

The contempt power of the legislature under our Constitution is sourced from the American system.30 A study of
foreign jurisprudence reveals that the Congress' inherent power of contempt must have a limitation. In the 1821
landmark case of Anderson v. Dunn,31 the Supreme Court of the United States (SCOTUS) held that although the
offense committed under the inherent power of contempt by Congress may be undefinable, it is justly contended that
the punishment need not be indefinite. It held that as the legislative body ceases to exist from the moment of its
adjournment or periodical dissolution, then it follows that imprisonment under the contempt power of Congress must
terminate with adjournment.

As the US Congress was restricted of incarcerating an erring witnesses beyond their adjournment under its inherent
power of contempt, it enacted a statutory law that would fix the period of imprisonment under legislative contempt.
Section 102 of the Revised Statutes, enacted on January 24, 1857, provided that the penalty of imprisonment for
legislative contempt was a fine of not more than one thousand dollars nor less than one hundred dollars, and
imprisonment in a common jail for not less than one (1) month nor more than twelve (12) months.32 The legislative
contempt under the statutes must be initiated for criminal prosecution and it must heard before the courts in order to
convict the contumacious witness.33

The case of In re Chapman34 involved the constitutionality of the statutory power of contempt of the US Congress.
There, the SCOTUS ruled that the said statute was valid because Congress, by enacting this law, simply sought to
aid each of the Houses in the discharge of its constitutional functions.

Subsequently, in Jurney v. MacCracken,35 the SCOTUS clarified that the power of either Houses of Congress to
punish for contempt was not impaired by the enactment of the 1857 statute. The said law was enacted, not because
the power of both Houses to punish for a past contempt was doubted, but because imprisonment limited to the
duration of the session was not considered sufficiently drastic as a punishment for contumacious witnesses. The
purpose of the statutory contempt was merely to supplement the inherent power of contempt by providing for
additional punishment. On June 22, 1938, Section 102 of the Revised Statutes was codified in Section 192, Title II of
the U.S. Code.36

In our jurisdiction, the period of the imprisonment for contempt by Congress was first discussed in Lopez v. De Los
Reyes37 (Lopez). In that case, on September 16, 1930, the petitioner therein was cited in contempt by the House of
Representatives for physically attacking their member. However, the assault occurred during the Second Congress,
which adjourned on November 8, 1929. The Court ruled therein that there was no valid exercise of the inherent power
of contempt because the House of Representatives already adjourned when it declared the petitioner in contempt.

It was held therein that imprisonment for a term not exceeding the session of the deliberative body in which the
contempt occurred was the limit of the authority to deal directly by way of contempt, without criminal prosecution.
Citing foreign jurisprudence, it was thoroughly discussed therein that the power of contempt was limited to
imprisonment during the session of the legislative body affected by the contempt. The Court also discussed the
nature of Congress' inherent power of contempt as follows:

xxx We have said that the power to find in contempt rests fundamentally on the power of self-preservation.
That is true even of contempt of court where the power to punish is exercised on the preservative and not on the
vindictive principle. Where more is desired, where punishment as such is to be imposed, a criminal
prosecution must be brought, and in all fairness to the culprit, he must have thrown around him all the
protections afforded by the Bill of Rights. Proceeding a step further, it is evident that, while the legislative power is
 21

perpetual, and while one of the bodies composing the legislative power disappears only every three years, yet the
sessions of that body mark new beginnings and abrupt endings, which must be respected.38 (emphases supplied)

The Court ruled therein that if the House of Representatives desires to punish the person cited in contempt beyond its
adjournment, then criminal prosecution must be brought. In that instance, the said person shall be given an
opportunity to defend himself before the courts.

Then came Arnault v. Nazareno39 (Arnault), where the Senate's power of contempt was discussed. In that case, the
Court held that the Senate "is a continuing body and which does not cease to exist upon the periodical dissolution of
Congress or of the House of Representatives. There is no limit as to time [with] the Senate's power to punish for
contempt in cases where that power may constitutionally be exerted xxx"40 It was ruled therein that had contempt
been exercised by the House of Representatives, the contempt could be enforced until the final adjournment of the
last session of the said Congress.41

Notably, Arnault gave a distinction between the Senate and the House of Representatives' power of contempt. In the
former, since it is a continuing body, there is no time limit in the exercise of its power to punish for contempt; on the
other hand, the House of Representatives, as it is not a continuing body, has a limit in the exercise of its power to
punish for contempt, which is on the final adjournment of its last session. In the same case, the Court addressed the
possibility that the Senate might detain a witness for life, to wit:

As against the foregoing conclusion it is argued for the petitioner that the power may be abusively and oppressively
exerted by the Senate which might keep the witness in prison for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if, contrary to this assumption, proper limitations are
disregarded, the portals of this Court are always open to those whose rights might thus be transgressed.42

Further, the Court refused to limit the period of imprisonment under the power of contempt of the Senate because
"[l]egislative functions may be performed during recess by duly constituted committees charged with the duty of
performing investigations or conducting hearings relative to any proposed legislation. To deny to such committees the
power of inquiry with process to enforce it would be to defeat the very purpose for which that power is recognized in
the legislative body as an essential and appropriate auxiliary to its legislative function. xxx."43

Later, in Neri v. Senate44 (Neri), the Court clarified the nature of the Senate as continuing body:

On the nature of the Senate as a "continuing body", this Court sees fit to issue a clarification. Certainly, there is no
debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national election or
change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each
Congress acts separately and independently of the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:

RULE XLIV
UNFINISHED BUSINESS

SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by
the succeeding Congress as if present for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the
same status, but as if presented for the first time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have a different composition as that of
the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no part. If
the Senate is a continuing body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course, continue into the next
Congress with the same status.45

Based on the above-pronouncement, the Senate is a continuing institution. However, in the conduct of its day-to-day
business, the Senate of each Congress acts separately and independently of the Senate of the Congress before it.
Due to the termination of the business of the Senate during the expiration of one (1) Congress, all pending matters
 22

and proceedings, such as unpassed bills and even legislative investigations, of the Senate are considered
terminated upon the expiration of that Congress and it is merely optional on the Senate of the succeeding
Congress to take up such unfinished matters, not in the same status, but as if presented for the first time.

The termination of the Senate's business and proceedings after the expiration of Congress was utilized by the Court
in ruling that the Senate needs to publish its rules for its legislative inquiries in each Congress. The pronouncement in
Neri was reiterated in Garcillano v. House of Representatives46 and Romero II v. Estrada.47
The period of detention under the Senate's
inherent power of contempt is not indefinite.

The Court finds that there is a genuine necessity to place a limitation on the period of imprisonment that may be
imposed by the Senate pursuant to its inherent power of contempt during inquiries in aid of legislation. Section 21,
Article VI of the Constitution states that Congress, in conducting inquiries in aid of legislation, must respect
the rights of persons appearing in or affected therein. Under Arnault, however, a witness or resource speaker
cited in contempt by the Senate may be detained indefinitely due to its characteristic as a continuing body. The said
witness may be detained for a day, a month, a year, or even for a lifetime depending on the desire of the perpetual
Senate. Certainly, in that case, the rights of persons appearing before or affected by the legislative inquiry are in
jeopardy. The constitutional right to liberty that every citizen enjoys certainly cannot be respected when they are
detained for an indefinite period of time without due process of law.

As discussed in Lopez, Congress' power of contempt rests solely upon the right of self-preservation and does not
extend to the infliction of punishment as such. It is a means to an end and not the end itself.48 Even arguendo that
detention under the legislative's inherent power of contempt is not entirely punitive in character because it may be
used by Congress only to secure information from a recalcitrant witness or to remove an obstruction, it is still a
restriction to the liberty of the said witness. It is when the restrictions during detention are arbitrary and purposeless
that courts will infer intent to punish. Courts will also infer intent to punish even if the restriction seems to be related
rationally to the alternative purpose if the restriction appears excessive in relation to that purpose.49 An indefinite and
unspecified period of detention will amount to excessive restriction and will certainly violate any person's right to
liberty.

Nevertheless, it is recognized that the Senate's inherent power of contempt is of utmost importance. A legislative
body cannot legislate wisely or effectively in the absence of information respecting the conditions which the
legislations are intended to affect or change. Mere requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed through the power of contempt during legislative inquiry.50 While there is a presumption of
regularity that the Senate will not gravely abuse its power of contempt, there is still a lingering and unavoidable
possibility of indefinite imprisonment of witnesses as long as there is no specific period of detention, which is certainly
not contemplated and envisioned by the Constitution.

Thus, the Court must strike a balance between the interest of the Senate and the rights of persons cited in contempt
during legislative inquiries. The balancing of interest requires that the Court take a conscious and detailed
consideration of the interplay of interests observable in a given situation or type of situation. These interests usually
consist in the exercise by an individual of his basic freedoms on the one hand, and the government's promotion of
fundamental public interest or policy objectives on the other.51

The Court finds that the period of imprisonment under the inherent power of contempt by the Senate during
inquiries in aid of legislation should only last until the termination of the legislative inquiry under which the
said power is invoked. In Arnault, it was stated that obedience to its process may be enforced by the Senate
Committee if the subject of investigation before it was within the range of legitimate legislative inquiry and the
proposed testimony called relates to that subject.52 Accordingly, as long as there is a legitimate legislative inquiry,
then the inherent power of contempt by the Senate may be properly exercised. Conversely, once the said legislative
inquiry concludes, the exercise of the inherent power of contempt ceases and there is no more genuine necessity to
penalize the detained witness.

Further, the Court rules that the legislative inquiry of the Senate terminates on two instances:

First, upon the approval or disapproval of the Committee Report. Sections 22 and 23 of Senate Rules state:

Sec. 22. Report of Committee. Within fifteen (15) days after the conclusion of the inquiry, the Committee shall
meet to begin the consideration of its Report.
 23

The Report shall be approved by a majority vote of all its members. Concurring and dissenting reports may likewise
be made by the members who do not sign the majority report within seventy-two (72) hours from the approval of the
report. The number of members who sign reports concurring in the conclusions of the Committee Report shall be
taken into account in determining whether the Report has been approved by a majority of the members: Provided,
That the vote of a member who submits both a concurring and dissenting opinion shall not be considered as part of
the majority unless he expressly indicates his vote for the majority position.

The Report, together with any concurring and/or dissenting opinions, shall be filed with the Secretary of the
Senate, who shall include the same in the next Order of Business.

Sec. 23. Action on Report. The Report, upon inclusion in the Order of Business, shall be referred to the Committee on
Rules for assignment in the Calendar. (emphases supplied)

As gleaned above, the Senate Committee is required to issue a Committee Report after the conduct of the legislative
inquiry. The importance of the Committee Report is highlighted in the Senate Rules because it mandates that the
committee begin the consideration of its Report within fifteen (15) days from the conclusion of the inquiry. The said
Committee Report shall then be approved by a majority vote of all its members; otherwise, it is disapproved. The said
Report shall be the subject matter of the next order of business, and it shall be acted upon by the Senate. Evidently,
the Committee Report is the culmination of the legislative inquiry. Its approval or disapproval signifies the end of such
legislative inquiry and it is now up to the Senate whether or not to act upon the said Committee Report in the
succeeding order of business. At that point, the power of contempt simultaneously ceases and the detained witness
should be released. As the legislative inquiry ends, the basis for the detention of the recalcitrant witness likewise
ends.

Second, the legislative inquiry of the Senate also terminates upon the expiration of one (1) Congress. As stated in
Neri, all pending matters and proceedings, such as unpassed bills and even legislative investigations, of the Senate
are considered terminated upon the expiration of that Congress and it is merely optional on the Senate of the
succeeding Congress to take up such unfinished matters, not in the same status, but as if presented for the first time.
Again, while the Senate is a continuing institution, its proceedings are terminated upon the expiration of that
Congress at the final adjournment of its last session. Hence, as the legislative inquiry ends upon that expiration, the
imprisonment of the detained witnesses likewise ends.

In Arnault, there have been fears that placing a limitation on the period of imprisonment pursuant to the Senate's
power of contempt would "deny to it an essential and appropriate means for its performance."53 Also, in view of the
limited period of imprisonment, "the Senate would have to resume the investigation at the next and succeeding
sessions and repeat the contempt proceedings against the witness until the investigation is completed xxx."54

The Court is of the view that these fears are insufficient to permit an indefinite or an unspecified period of
imprisonment under the Senate's inherent power of contempt. If Congress believes that there is a necessity to
supplement its power of contempt by extending the period of imprisonment beyond the conduct of its legislative
inquiry or beyond its final adjournment of the last session, then it can enact a law or amend the existing law that
penalizes the refusal of a witness to testify or produce papers during inquiries in aid of legislation. The charge of
contempt by Congress shall be tried before the courts, where the contumacious witness will be heard. More
importantly, it shall indicate the exact penalty of the offense, which may include a fine and/or imprisonment, and the
period of imprisonment shall be specified therein. This constitutes as the statutory power of contempt, which is
different from the inherent power of contempt.

Congress' statutory power of contempt has been recognized in foreign jurisdictions as reflected in the cases of In re
Chapman and Jurney v. MacCracken. Similarly, in this jurisdiction, the statutory power of contempt of Congress was
also acknowledged in Lopez. It was stated therein that in cases that if Congress seeks to penalize a person cited in
contempt beyond its adjournment, it must institute a criminal proceeding against him. When his case is before the
courts, the culprit shall be afforded all the rights of the accused under the Constitution. He shall have an opportunity
to defend himself before he can be convicted and penalized by the State.

Notably, there is an existing statutory provision under Article 150 of the Revised Penal Code, which penalizes the
refusal of a witness to answer any legal inquiry before Congress, to wit:

Art. 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the
Constitutional Commissions, its committees, subcommittees or divisions. — The penalty of arresto mayor or a fine
ranging from two hundred to one thousand pesos, or both such fine and imprisonment shall be imposed upon any
person who, having been duly summoned to attend as a witness before the National Assembly, (Congress), its
 24

special or standing committees and subcommittees, the Constitutional Commissions and its committees,
subcommittees, or divisions, or before any commission or committee chairman or member authorized to summon
witnesses, refuses, without legal excuse, to obey such summons, or being present before any such
legislative or constitutional body or official, refuses to be sworn or placed under affirmation or to answer any
legal inquiry or to produce any books, papers, documents, or records in his possession, when required by
them to do so in the exercise of their functions. The same penalty shall be imposed upon any person who shall
restrain another from attending as a witness, or who shall induce disobedience to a summon or refusal to be sworn
by any such body or official. (emphasis and underscoring supplied)

Verily, the said law may be another recourse for the Senate to exercise its statutory power of contempt. The period of
detention provided therein is definite and is not limited by the period of the legislative inquiry. Of course, the
enactment of a new law or the amendment of the existing law to augment its power of contempt and to extend the
period of imprisonment shall be in the sole discretion of Congress.

Moreover, the apprehension in Arnault – that the Senate will be prevented from effectively conducting legislative
hearings during recess – shall be duly addressed because it is expressly provided herein that the Senate may still
exercise its power of contempt during legislative hearings while on recess provided that the period of imprisonment
shall only last until the termination of the legislative inquiry, specifically, upon the approval or disapproval of the
Committee Report. Thus, the Senate's inherent power of contempt is still potent and compelling even during its
recess. At the same time, the rights of the persons appearing are respected because their detention shall not be
indefinite.

In fine, the interests of the Senate and the witnesses appearing in its legislative inquiry are balanced. The Senate can
continuously and effectively exercise its power of contempt during the legislative inquiry against recalcitrant
witnesses, even during recess. Such power can be exercised by the Senate immediately when the witness performs
a contemptuous act, subject to its own rules and the constitutional rights of the said witness.

In addition, if the Congress decides to extend the period of imprisonment for the contempt committed by a witness
beyond the duration of the legislative inquiry, then it may file a criminal case under the existing statute or enact a new
law to increase the definite period of imprisonment.

PCA RULING

The competing arguments

The substance behind the Permanent Court of Arbitration’s findings dates back to 1995 when China seized Mischief
Reef, a previously unoccupied feature lying 126 nautical miles from the Philippine coast and over 600 nautical miles
from Hainan Island, the nearest Chinese territory. After a decade of protracted negotiations, during which China
continued island building and the militarisation of a number of its newly-developed features, the Philippines in
January 2013 served China with a ‘Notification and statement … with respect to the dispute with China over the
maritime jurisdiction of the Philippines in the West Philippine Sea’.25

The Philippines sought a legal determination on the validity of China’s ninedash line, arguing the concept is
inconsistent with UNCLOS, and asked the Court to judge whether a number of features claimed by both China and
the Philippines were legally islands, rocks or low tide elevations. It also sought a declaration that China had interfered
with the Philippines’ rights under UNCLOS through its fishing and island-construction activities within the Philippines’
EEZ.

It is important to appreciate that UNCLOS only deals with maritime disputes and not jurisdiction over land.
Accordingly, the Philippines deliberately did not ask the Permanent Court of Arbitration to adjudicate on any of the
features, nor delineate any maritime boundaries resulting from those features, but only to determine if they qualified
as islands, rocks or low tide elevations. From the Philippines’ perspective, if a feature within 200 nautical miles of the
Philippines’ mainland was determined to be an island—and consequently generated a 200-nautical mile EEZ—there
is the potential for overlapping EEZs should another country gain jurisdiction over that feature.
If, however, it was deemed to be a rock or low tide elevation, and therefore not generating an EEZ, a logical
consequence would be that if the feature lies within the 200-nautical mile EEZ from the Philippines’ coast, the
Philippines’ claim to jurisdiction would be strengthened. The Philippines was also mindful that China had withdrawn
from the compulsory dispute resolution mechanisms of UNCLOS for disputes involving maritime claims, which was
another reason to avoid discussion over ownership.

China was quick to react, rejecting the Philippines’ notice and returning it on 19 February 2013. Since then, China
has repeatedly stated that it does not accept the legality of the proceedings and refused to either participate in
deliberations or accept the Court’s findings. Despite this, China wrote to the Tribunal and issued numerous diplomatic
 25

notes and public statements regarding the case, including the previously mentioned ‘Position paper’ released in
December 2014.26
China placed great emphasis on the concept that sovereignty over land territory is the basis for determining maritime
rights and consequently argued that no maritime-based determinations can be made until sovereignty issues are first
resolved.27 Its rejection of the case was based on the argument that, despite the Philippines’ wording that the case is
not linked to ownership of the maritime features in question, the essence of the claim is one of territorial sovereignty
and consequently falls outside the scope of UNCLOS.28

China also reinforced that it had opted out of the compulsory dispute mechanisms in UNCLOS related to maritime
boundaries, which China has repeatedly claimed is what the Philippines’ arbitration was ultimately about. China
further argued that as the two countries have signed the ASEAN-endorsed ‘Declaration on the Conduct of Parties in
the South China Sea’—which has a dispute resolution mechanism—the procedures in that agreement should be
used.29 Further, China consequently argued that by initiating arbitration through the Permanent Court of Arbitration,
the Philippines has breached international law.30
As part of its submission to the UN, the Philippines outlined the progression of its dispute with China and the efforts
since 1995 to resolve the issues both bilaterally and through ASEAN.31 The Permanent Court of Arbitration
approach, from the Philippines’ perspective, was therefore the culmination of over 10 years of negotiations and
dialogue which had become increasingly polarised and intractable. During that period, while the two sides were
engaged in diplomatic dialogue, China consolidated its control of the disputed Mischief Reef, while also continuing
island building and consolidating its physical control over other features in the region.
This approach has been widely used by China throughout the South China Sea, with a senior Chinese military officer
referring to it as the ‘cabbage strategy’, whereby a layered approach of assets either protects a Chinese-occupied
feature or slowly strangles the lifelines supporting another nation’s outposts.32 Accordingly, it is hard to sustain an
argument against the Philippines’ position that, having tried other resolution processes to no avail, it had no choice
but to resort to the resolution provisions of UNCLOS.

The Permanent Court of Arbitration’s findings

As China refused to recognise or participate in the proceedings of the Permanent Court of Arbitration, the Court held
a hearing in July 2015 to determine its jurisdiction to hear the case, using China’s ‘Position paper’ and other public
statements as the basis of China’s position. The Court decided it did have jurisdiction, ruling the dispute was not one
of maritime boundaries, for which China had an exception, but of interpretation and applicability of UNCLOS, for
which there is no exception.Having determined that it had jurisdiction, the Court commenced deliberations on the
substance of the Philippines’ case, again using China’s ‘Position paper’ together with diplomatic and media
statements to form the Chinese case.

The findings were released on 12 July 2016 and were more strongly worded and supportive of the Philippines’
position than most commentators expected.34 The Court found that there was no legal basis for the nine-dash line
concept and that none of the features in the Spratly Islands group met the threshold to be classed as an island.35
The Court was also very critical of China’s impact on the environment through island building and destructive fishing
practices and of China’s breaches of ‘international rules of the road’ during skirmishes between Chinese and
Philippine vessels around some of the disputed areas.36 The findings on the validity of the nine-dash line are the
most consequential as they underpin Chinese activities throughout the entire South China Sea. The implications
So what does the Permanent Court of Arbitration ruling mean for the wider suite of issues throughout the South China
Sea? Since the findings were released, matters have become potentially more complicated with incoming Philippine
President Rodrigo Duterte threatening to withdraw the Philippines from the UN and asserting during a visit to China
that he was ‘separating from the United States and [that] … I’ve realigned myself to your ideological flow’.37

It is not clear how serious his comments were, nor how successful he will be in re-shaping relations with China, given
the strong support from the majority of the Philippine people for the US. Duterte does, however, seem more willing to
work with China than his predecessors, and his tone to date has been at odds with the sentiment behind the original
Philippines’ claim.
Dentate’s apparent shift in loyalty may initially ease tensions between the Philippines and China and could potentially
result in an interim solution where economic benefits are shared and further militarisation of islands in the Philippines’
EEZ is halted. If such an outcome did eventuate (which is far from certain), many of the UNCLOS-related aspects
that were legally clarified under the Permanent Court of Arbitration’s decision—and which have consequences
throughout the South China Sea (for example, the validity of the nine-dash line and the distinction between islands
and rocks)—may not be tested in practice.

Indeed, the dilemma facing the international community is what to do if China (or any other nation) continues to build
and fortify islands and conduct resource exploitation contrary to the Permanent Court of Arbitration ruling. Should the
international community do nothing under these circumstances, the ruling would be rendered irrelevant and both the
credibility of UNCLOS and the wider concept of rule-of-law in international relations would be significantly damaged.
The realities of international law mean that there are no overarching enforcement bodies or mandatory dispute-
resolution mechanisms, as states enter into conventions and agreements by choice, and can withdraw if they no
 26

longer suit their interests. Legal instruments such as the International Court of Justice and the International Tribunal
of the Law of the Sea are maturing as mechanisms to resolve disputes but their acceptance is far from universal, as
this Permanent Court of Arbitration ruling shows. Consequently, the way forward in the South China Sea is very
fragile.

International law evolves in response to accepted norms that evolve over time. It has been a longstanding practice for
navies to transit areas to build precedents in support of their government’s position on an issue. The most prominent
program is the so-called freedom of navigation operations conducted by the US Navy, although many nations use
their navies in similar ways. During such operations, the state opposing an activity must protest the action or be seen
to partly acquiesce their position, while the state undertaking the transit must be seen to overtly exercise what it sees
as its right. It is important to appreciate that the US freedom of navigation program is not new, nor targeted against
China. The US has a long history of challenging maritime claims that it sees as unreasonable, including against
Australia when restrictions were placed on pilotage through the Torres Strait, between Australia and Papua New
Guinea.38

While building a record of precedents helps consolidate a nation’s position on an issue, the greatest level of clarity
and legitimacy around the practical interpretation of international conventions and agreements stems from
international legal determinations. In this context, the Permanent Court of Arbitration ruling has clarified aspects such
as the nine-dash line concept and the maritime zones generated by features in the Spratly Islands, even if ownership
of those features and maritime zones remains in dispute.

In theory, in order to consolidate the practical application of the Permanent Court of Arbitration’s ruling and to
exercise the high seas freedoms permitted under UNCLOS in light of these determinations, the international
community should continue operating throughout the region, including conducting the full range of activities, including
military exercises, up to 12 nautical miles from the features determined to be ‘rocks’ (which generate a territorial sea)
and up to a 500-metres safety distance from those determined to be ‘low tide elevations’ (which do not generate a
territorial sea) regardless of who claims ownership of those features. Only by doing this can the international
community consolidate the Permanent Court of Arbitration’s findings in practice.
There has been much media interest in US ships sailing within 12 nautical miles of disputed features in the South
China Sea, and calls for Australian warships to do the same.39 However, unless the vessels engage in non-innocent
activities, such as manoeuvering and conducting replenishment operations within 12 nautical miles of a low tide
elevation, the claim of a territorial sea is not being challenged. Indeed, it could be argued that if the passage is
‘innocent’ within 12 nautical miles of a low tide elevation, then a territorial sea is being partly recognised.
Reality is different to theory, however. The US Navy has been present in Asia for over 70 years and has underwritten
the stability and prosperity of the region since World War 2. No nation has benefited from this more than China. But
as China has grown economically, it has become both more reliant on overseas trade and more nationalistic as it
sees itself emerging from its ‘century of humiliation’ to take its rightful place on the world stage.

As China has developed longer-range weapons and undertaken major island-building activities throughout the South
China Sea—with deliberately ambiguous and contradictory messaging—the US has seen an increased need for
surveillance and monitoring to better understand Chinese intent. This in turn drives Chinese concerns that the US is
seeking to contain China, leading to increasing tension between China’s desire for greater control throughout the
region and the US-led desire to maintain high-seas’ freedoms. This tension has been growing regardless of the
Philippines’ arbitration case but the Court’s outcomes have the potential to be a major factor in how relations evolve
into the future as the findings have effectively undermined the Chinese position and reaffirmed the primacy of the
rule-of-law and UNCLOS. Practical activities in support of each position must be carefully thought through and
nuanced, as tensions could easily rise quickly and miscalculations result. But doing nothing is not a viable long-term
solution either, lest China changes the reality on the water permanently and undermines the foundations of freedom
of the seas and the rule-of-law despite the Court’s ruling.

Suisheng Zhao has highlighted that future peace and stability in the Asia Pacific will require accommodation from
both the US and China.40 Any thoughts of containing China’s rise (in the Cold War context) will be problematic.
Comparisons with the containment strategy employed against the USSR are flawed for a number of reasons. The
Soviet economy was largely closed whereas the US, like most nations, is now inextricably linked economically to
China and vice versa. Of course, a similar situation was argued prior to World War 1, so economic integration in itself
is not a guarantee of peace. However, the unprecedented level and global nature of mutual economic dependence
should give cause for concern over commencing conflict.
The US is also under pressure internally, with a significant budget deficit and sequestration provisions that have
limited funding for the military. Coupled with global commitments, the relative power of the US military in the Asia
Pacific looks likely to continue to decline, even as the US maintains its position as the world’s most powerful military
in absolute terms. The role of regional nations will also be important. Most welcome continued US presence in the
region as a stabilising influence but will also be mindful of their own relationship with China as Chinese power
expands.
 27

China also has problems that will prevent it becoming the sole hegemonic power in the region, not the least of which
is increasing internal pressures that are inevitable with a large population becoming accustomed to continual
economic growth. The stellar growth rates of the last two decades cannot continue and the key Chinese priority is the
continued success of the Communist Party which relies on internal stability. As the population deals with the down-
sides of rapid economic progress, such as mass urbanisation, environmental degradation, pollution and growing
wealth disparity, internal issues will become a greater focus for Chinese leaders. Furthermore, the more belligerent
China becomes, the more other Asian nations can be expected to turn towards the US, although China has a very
well established soft power and diplomatic program to help counter this trend. Hence, both China and the US are,
and will likely continue, travelling a fine path towards ultimate compromise. It is important, however, that such
compromise is reached with due respect for international law and not by the rule of force.

The future of the South China Sea is far from clear but the Permanent Court of Arbitration ruling in the Philippines
case has provided at least the opportunity for many of the ambiguous aspects under UNCLOS to be clarified. While
the findings are not accepted by China, it is in everyone’s interests to keep an open dialogue and spirit of
cooperation. What cannot be allowed is blatant disregard of the rule-of-law as embodied in UNCLOS, and which had
specific aspects relating to the South China Sea clarified in the Permanent Court of Arbitration ruling. None of the
claimant states, nor the wider international community, will benefit from conflict in this vital part of the world. The
value of open and free sea lines of communication and high-seas’ freedoms are too important not to be defended.
Nations must continue to use the South China Sea as they always have to ensure customary international law is
maintained, albeit extra-regional nations, including the US and Australia, must be mindful of the legitimate rise in
Chinese naval power. The navies of the world have always been tremendous ambassadors for their countries and, in
the years ahead, it will be more important than ever for all navies to be open, transparent and cooperative as political
events unfold. But they must also be ready to act. President Roosevelt’s saying that one should ‘speak softly but
carry a big stick’ is just as important today as it has ever been.

ARAULLO CASE

On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of the
Philippines to reveal that some Senators, including himself, had been allotted an additional P50 Million each as
"incentive" for voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public statement
entitled Abad: Releases to Senators Part of Spending Acceleration Program, explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to ramp up spending to accelerate economic
expansion.
The DBM soon came out to claim in its website that the DAP releases had been sourced from savings
generated by the Government, and from unprogrammed funds; and that the savings had been derived from (1) the
pooling of unreleased and (2) the withdrawal of unobligated allotments also for slow-moving programs and projects
that had been earlier released to the agencies of the National Government.
The petitioners brought to the Court’s attention NBC No. 541 (Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued
to implement the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of government agencies
and offices with low levels of obligations, both for continuing and current allotments.

Issues:
Whether or not Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No money
shall be paid out of the Treasury except in pursuance of an appropriation made by law?

Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate
Sec. 25(5), Art. VI of the 1987 Constitution insofar as:

(a)They treat the unreleased appropriations and unobligated allotments withdrawn from government
agencies as "savings" as the term is used in Sec. 25(5), in relation to the provisions of the GAAs of 2011,
2012 and 2013;

(b)They authorize the disbursement of funds for projects or programs not provided in the GAAs for the
Executive Department; and

Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and balances, and (3) the
principle of public accountability enshrined in the 1987 Constitution considering that it authorizes the release of funds
upon the request of legislators?

Whether or not the Doctrine of Operative Fact is applicable?

 28

Ruling:

No. The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP because
of being neither a fund nor an appropriation, but a program or an administrative system of prioritizing spending; and
that the adoption of the DAP was by virtue of the authority of the President as the Chief Executive to ensure that laws
were faithfully executed.

We agree with the OSG’s position.

The DAP was a government policy or strategy designed to stimulate the economy through accelerated
spending. In the context of the DAP’s adoption and implementation being a function pertaining to the
Executive as the main actor during the Budget Execution Stage under its constitutional mandate to faithfully
execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the DAP.
Congress could appropriate but would have nothing more to do during the Budget Execution Stage. 

The President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to changes in the country’s economic situation. He could adopt
a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the
DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the
DAP did not involve appropriation in the strict sense because the money had been already set apart from
the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power
vested in Congress under Section 29(1), Article VI of the Constitution.
No. The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of
the following requisites, namely:

(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective
offices; and
(3) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.

GAA’s of 2011 and 2012 lacked a law to authorize transfers of funds under the DAP. Hence, transfers under
DAP were unconstitutional.

Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to
be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs
should expressly authorize the transfer of funds.

In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was
Section 59, as follows:

Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of
their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of
their respective appropriations.

A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to
the Constitution for not carrying the phrase "for their respective offices" contained in Section 25(5), supra. The impact
of the phrase "for their respective offices" was to authorize only transfers of funds within their offices (i.e., in the case
of the President, the transfer was to an item of appropriation within the Executive). The provisions carried a different
phrase ("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed
the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the
Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution.
 29

There were no savings from which funds could be sourced for the DAP Were the funds used in the DAP
actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and withdrawn unobligated
allotments — were not actual savings within the context of Section 25(5), supra, and the relevant provisions of the
GAAs
We partially find for the petitioners.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it
operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid
compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in
this Act at a lesser cost.

In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress
wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts
of money to be spent for each PAP. The second principle is that the Executive, as the department of the Government
tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA. The Executive is expected to faithfully implement the PAPs for which Congress allocated
funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which
augmentation is authorized, subject to the conditions provided by law. The third principle is that in making the
President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the
Executive. But Congress does not thereby allow the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes
something that is real or substantial, or something that exists presently in fact, as opposed to something that is
merely theoretical, possible, potential or hypothetical.

The foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment.
It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been
allocated were already satisfied, or the need for such funds had ceased to exist, for only then could savings be
properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power of the purse.

The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased appropriations
such as unreleased Personnel Services appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per Zero-Based Budgeting findings. The fact alone
that the appropriations are unreleased or unalloted is a mere description of the status of the items as unalloted or
unreleased. They have not yet ripened into categories of items from which savings can be generated. 

Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the
GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when
savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings without
first determining whether any of the three instances existed. This signified that the DBM’s withdrawal of unobligated
allotments had disregarded the definition of savings under the GAAs.
No funds from savings could be transferred under DAP to augment deficient items not provided in the GAA.

The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the
general appropriations law for the respective offices." The term "augment" means to enlarge or increase in size,
amount, or degree.

The failure of the GAAs to set aside any amounts for an expense category sufficiently indicated that Congress
purposely did not see fit to fund, much less implement, the PAP concerned. This indication becomes clearer when
even the President himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any funding
for which would go beyond the authority laid down by Congress in enacting the GAAs.
Cross-border augmentations from savings were prohibited by the Constitution.

By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any
item in the GAA "for their respective offices," Section 25(5), supra, has delineated borders between their offices, such
that funds appropriated for one office are prohibited from crossing over to another office even in the guise of
 30

augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border
augmentations.

To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive, with respect to
the President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their
respective Chairpersons.

The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were transferred under
the DAP respectively to the COA and the House of Representatives. Those transfers of funds, which constituted
cross-border augmentations for being from the Executive to the COA and the House of Representatives.

The respondents further stated in their memorandum that the President "made available" to the "Commission on
Elections the savings of his department upon [its] request for funds…" This was another instance of a cross-border
augmentation.

Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5),
supra, disallowing cross border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid,
was prohibited under Section 25(5), supra.

Sourcing the DAP from unprogrammed funds despite the original revenue targets not having been exceeded
was invalid.

The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed funds were
treated as separate sources of funds. Even so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when the unprogrammed funds could be
released and the purposes for which they could be used.

The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP were in
accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that the unprogrammed funds
could be availed of when any of the following three instances occur, to wit: (1) the revenue collections exceeded the
original revenue targets proposed in the BESFs submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the BESFs; or(3) newly-approved loans for foreign
assisted projects were secured, or when conditions were triggered for other sources of funds, such as perfected loan
agreements for foreign-assisted projects. This view of the DBM was adopted by all the respondents in their
Consolidated Comment.

The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations that
provided standby authority to incur additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are generated. Contrary to the DBM’s averment that there were
three instances when unprogrammed funds could be released, the BESFs envisioned only two instances. The third
mentioned by the DBM – the collection of new revenues from sources not originally considered in the BESFs – was
not included. This meant that the collection of additional revenues from new sources did not warrant the release of
the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were collected or generated, the
basic condition that the revenue collections should exceed the revenue targets must still be complied with in order to
justify the release of the unprogrammed funds.

The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase "revenue
collections should exceed the original revenue targets." The petitioners take the phrase to mean that the total
revenue collections must exceed the total revenue target stated in the BESF, but the respondents understand the
phrase to refer only to the collections for each source of revenue as enumerated in the BESF, with the condition
being deemed complied with once the revenue collections from a particular source already exceeded the stated
target.

However, the requirement that revenue collections exceed the original revenue targets was to be construed in light of
the purpose for which the unprogrammed funds were incorporated in the GAAs as standby appropriations to support
additional expenditures for certain priority PAPs should the revenue collections exceed the resource targets assumed
in the budget or when additional foreign project loan proceeds were realized. The unprogrammed funds were
included in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should new or
additional revenue sources be realized during the year. Given the tenor of the certifications, the unprogrammed funds
were thus not yet supported by the corresponding resources.

The revenue targets stated in the BESF were intended to address the funding requirements of the proposed
programmed appropriations. In contrast, the unprogrammed funds, as standby appropriations, were to be released
 31

only when there were revenues in excess of what the programmed appropriations required. As such, the revenue
targets should be considered as a whole, not individually; otherwise, we would be dealing with artificial revenue
surpluses. The requirement that revenue collections must exceed revenue target should be understood to mean that
the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess revenue as to one source of revenue would be an
unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in
contravention of the Government’s surplus budget policy.

We cannot, therefore, subscribe to the respondents’ view.

No. With respect to the challenge against the DAP under the Equal Protection Clause, Luna argues that the
implementation of the DAP was "unfair as it [was] selective" because the funds released under the DAP was not
made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others
being unaware of the availability of such funds. Thus, the DAP practised "undue favoritism" in favor of select
legislators in contravention of the Equal Protection Clause.

COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable classification was
used in distributing the funds under the DAP; and that the Senators who supposedly availed themselves of said funds
were differently treated as to the amounts they respectively received.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds under the DAP
could be raised only by the affected Members of Congress themselves, and if the challenge based on the violation of
the Equal Protection Clause was really against the constitutionality of the DAP, the arguments of the petitioners
should be directed to the entitlement of the legislators to the funds, not to the proposition that all of the legislators
should have been given such entitlement.

Equal Protection Clause

The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds
under the DAP to legislators, lacks factual and legal basis. The allegations about Senators and Congressmen being
unaware of the existence and implementation of the DAP, and about some of them having refused to accept such
funds were unsupported with relevant data. Also, the claim that the Executive discriminated against some legislators
on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the
Equal Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties
who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such
affected legislators could properly and fully bring to the fore when and how the denial of equal protection occurred,
and explain why there was a denial in their situation. The requirement was not met here. Consequently, the Court
was not put in the position to determine if there was a denial of equal protection.
Separation of Powers
Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to faithfully
execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the
President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the
GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the
power to spend the public wealth resided in Congress, not in the Executive. Moreover, leaving the spending power of
the Executive unrestricted would threaten to undo the principle of separation of powers.
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it
deliberates and acts on the budget proposal submitted by the Executive. Its power of the purse is touted as the very
foundation of its institutional strength, and underpins "all other legislative decisions and regulating the balance of
influence between the legislative and executive branches of government." Such enormous power encompasses the
capacity to generate money for the Government, to appropriate public funds, and to spend the money. Pertinently,
when it exercises its power of the purse, Congress wields control by specifying the PAPs for which public money
should be spent.

It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations.For
this purpose, appropriation involves two governing principles, namely: (1) "a Principle of the Public Fisc, asserting
that all monies received from whatever source by any part of the government are public funds;" and (2) "a Principle of
Appropriations Control, prohibiting expenditure of any public money without legislative authorization.” To conform to
the governing principles, the Executive cannot circumvent the prohibition by Congress of expenditure for a PAP by
resorting to either public or private funds. Nor could the Executive transfer appropriated funds resulting in an increase
in the budget for one PAP, for by so doing the appropriation for another PAP is necessarily decreased. The terms of
both appropriations will thereby be violated.
Principle of Accountability with regard to DAP
Anent the principle of public accountability being transgressed because the adoption and implementation of the DAP
constituted an assumption by the Executive of Congress’ power of appropriation, we have already held that the DAP
and its implementing issuances were policies and acts that the Executive could properly adopt and do in the
 32

execution of the GAAs to the extent that they sought to implement strategies to ramp up or accelerate the economy of
the country.

Yes. Doctrine of operative fact was applicable.

The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no effect.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the
DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could
not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act
is broad enough to include any and all acts of the Executive, including those that are quasi legislative and quasi-
judicial in nature.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always
apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in
situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice;  but
where no such result would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no
longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the
authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil, administrative and other liabilities.

WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of savings contained in the General Appropriations
Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices
outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the
General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification
by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance
with the conditions provided in the relevant General Appropriations Acts.

LAGMAN CASE

FACTS: Effective May 23, 2017, and for a period not exceeding 60 days, President Duterte issued Proclamation No.
216 declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of
Mindanao.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on May 25,
2017, a written Report on the factual basis of Proclamation No. 216. The Report pointed out that for decades,
Mindanao has been plagued with rebellion and lawless violence which only escalated and worsened with the passing
of time.

The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking officers
of the Abu Sayyaf IP (ASG) and the Maute Group was conducted. These groups, which have been unleashing havoc
in Mindanao, however, confronted the government operation by intensifying their efforts at sowing violence aimed not
only against the government authorities and its facilities but likewise against civilians and their properties. In
particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City which
impelled him to declare a state of martial law and suspend the privilege of writ of habeas corpus

The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in Mindanao,
and the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions once Marawi City
falls under the control of the lawless groups.

President Duterte concluded, "While the government is presently conducting legitimate operations to address the on-
going rebellion, if not the seeds of invasion, public safety necessitates the continued implementation of martial law
 33

and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the
rebellion is completely quelled."

After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 390 expressing full
support to the martial law proclamation and finding Proclamation No. 216 "to be satisfactory, constitutional and in
accordance with the law". In the same Resolution, the Senate declared that it found "no compelling reason to revoke
the same".

The Lagman Group, the Cullamat Group and the Mohamad Group petitioned (Petitions) the Supreme Court,
questioning the factual basis of President Duterte's Proclamation of martial law. The OSG sided with President
Duterte.

ISSUES:

[1] Are the Petitions the proper proceeding to invoke the SC's power of review over proclamations of martial law?
[2] Is the President required to be factually correct or only not arbitrary in his appreciation of facts?
[3] Is the President required to obtain the favorable recommendation thereon bf the Secretary of National Defense?
[4] Is the President is required to take into account only the situation at the time ff the proclamation, even if
subsequent events prove the situati n to have not been accurately reported?
[5] Is the power of this Court to review the sufficiency of tlie factual basis [of] the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus is independent of the actual actiorls that have been taken by
Congress jointly or separately
[6] Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the
privilege of the writ of habea~ corpus; · a. What are the parameters for review? b. Who has the burden of proof? I !I c.
What is the threshold of evidence?
[7] Whether the exercise of the power of judicial review by this Couj involves the calibration of graduated powers
granted the President ~~ Commander-in-Chief, namely calling out powers, suspension of th~ privilege of the writ of
habeas corpus, and declaration of martial law
[8] Whether or not Proclamation No. 216 of23 May 2017 may be considered, vague and thus null and void: a. with its
inclusion of "other rebel groups;" or b. since it has no guidelines specifying its actual operational parameters within
the entire Mindanao region;
[9] Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to
Congress are sufficient [bases]: a. for the existence of actual rebellion; or b. for a declaration of martial law or the
suspension of the privilege of the writ of habeas corpus in the entire Mindanao 1 region;
[10] Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements
of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas corpus; and
[11] Whether or not nullifying Proclamation No. 216 of23 May 2017 will: a. have the effect of recalling Proclamation
No. 55 s. 2016; or b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in
Marawi and other parts of the Mindanao region.

HELD:

[0] The Constitution only requires that questions regarding the validity and factual basis of a proclamation of
martial law or a suspension of the privilege of the writ of habeas corpus be raised by any citizen, considering the
transcendental importance of such questions.

[1] Yes, the Petitions invoke the proper proceedings as contemplated by the Constitution. "The Supreme Court
may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from filing."

Jurisdiction is conferred by law. The Constitution confers the Supreme Court the power to review martial law
proclamations.

A petition for certiorari is not the proper petition. The power of the Supreme Court to review the factual basis of
martial law proclamations is not limited by Sections 1 and 5 of Article VIII of the Constitution. It's a completely
different proceeding not limited by lack of or abuses of discretion.

The factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is not
a political question but precisely within the ambit of judicial review.

In fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of Section 18, Article VII refers to
any action initiated by a citizen for the purpose of questioning the sufficiency of the factual basis of the exercise of the
 34

Chief Executive's emergency powers, as in these cases. It could be denominated as a complaint, a petition, or a
matter to be resolved by the Court.

[2] The power of the Court to review the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus under Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress. The framers of the 1987 Constitution intended the judicial power to
review to be exercised independently from the congressional power to revoke.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the
ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension,
which revocation shall not be set aside by the President. Thus, the power to review by the Court and the power to
revoke by Congress are not only totally different but likewise independent from each other although, concededly, they
have the same trajectory, which is, the nullification of the presidential proclamation. Needless to say, the power of the
Court to review can be exercised independently from the power of revocation of Congress.

[3] The judicial power to review the sufficiency of factual basis of the declaration of martial law or the
suspension of the privilege of the writ of habeas corpus does not extend to the calibration of the President's decision
of which among his graduated powers he will avail of in a given situation.

These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore
necessarily follows that the power and prerogative to determine whether the situation warrants a mere exercise of the
calling out power; or whether the situation demands suspension of the privilege of the writ of habeas corpus; or
whether it calls for the declaration of martial law, also lies, at least initially, with the President. The power to choose,
initially, which among these extraordinary powers to wield in a given set of conditions, is a judgment call on the part of
the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address
exigencies or threats that endanger the government, and the very integrity of the State.

It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision
pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would be tantamount to an
incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at least
initially, lies with the President.

[4] There is no vagueness because the whereas clauses of the Proclamation explain the meaning of "other
rebel groups." Also, the vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment cases. Vagueness doctrine applies only in
free speech cases.

Moreover, lack of guidelines/operational parameters does not make Proclamation No. 216 vague. Clearly, therefore,
there is no need for the Court to determine the constitutionality of the implementing and/or operational guidelines,
general orders, arrest orders and other orders issued after the proclamation for being irrelevant to its review. Thus,
any act committed under the said orders in violation of the Constitution and the laws, such as criminal acts or human
rights violations, should be resolved in a separate proceeding. Finally, there is a risk that if the Court wades into these
areas, it would be deemed as trespassing into the sphere that is reserved exclusively for Congress in the exercise of
its power to revoke.

[5] The calling out power is in a different category from the power to declare martial law and the power to
suspend the privilege of the writ of habeas corpus; nullification of Proclamation No. 216 will not affect Proclamation
No. 55. The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national
emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated September 4, 2016,
where he called upon the Armed Forces and the Philippine National Police (PNP) to undertake such measures to
suppress any and all forms of lawless violence in the Mindanao region, and to prevent such lawless violence from
spreading and escalating elsewhere in the Philippines.

In other words, the President may exercise the power to call out the Armed Forces independently of the power to
suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course, it may also be a
prelude to a possible future exercise of the latter powers, as in this case.

[6] After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during
the declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is
concerned. In any event, safeguards under Section 18, Article VII of the Constitution are in place to cover such a
 35

situation, e.g., the martial law period is good only for 60 days; Congress may choose to revoke it even immediately
after the proclamation is made; and, this Court may investigate the factual background of the declaration.

Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or inaccuracies in
some of the facts stated in the proclamation and the written report are not enough reasons for the Court to invalidate
the declaration and/or suspension as long as there are other facts in the proclamation and the written Report that
support the conclusion that there is an actual invasion or rebellion and that public safety requires the declaration
and/or suspension. In sum, the Court's power to review is limited to the determination of whether the President in
declaring martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our
review would be limited to an examination on whether the President acted within the bounds set by the Constitution,
i.e., whether the facts in his possession prior to and at the time of the declaration or suspension are sufficient for him
to declare martial law or suspend the privilege of the writ of habeas corpus.

[7] To summarize, the parameters for determining the sufficiency of factual basis are as follows: l) actual
rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable
cause for the President to believe that there is actual rebellion or invasion.

[8] There is sufficient factual basis for the declaration of martial law and the suspension of the writ of habeas
corpus.

At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of accuracy or
veracity of the facts upon which the President anchored his declaration of martial law or suspension of the privilege of
the writ of habeas corpus; rather, only the sufficiency of the factual basis as to convince the President that there is
probable cause that rebellion exists. It must also be reiterated that martial law is a matter of urgency and much
leeway and flexibility should be accorded the President As such, he is not expected to completely validate all the
information he has received before declaring martial law or suspending the privilege of the writ of habeas corpus.

Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report; along with these
alleged false data is arsenal of other independent facts showing that more likely than not, actua1 rebellion exists, and
public safety requires the declaration of martial law or the suspension of the privilege of the writ of habeas corpus. To
be precise, the alleged false and/or inaccurate statements are only five out of the seven statements bulleted in the
President's Report. Notably, in the interpellation by Justice Francis H. Jardeleza during the second day of the oral
argument, petitioner Lagman admitted that he was not aware or that he had no personal knowledge of the other
incidents cited.241 As it thus stands, there is no question or challenge with respect to the reliability of the other
incidents, which by themselves are ample to preclude the conclusion that the President's report is unreliable and that
Proclamation No. 216 was without sufficient factual basis. Verily, there is no credence to petitioners' claim that the
bases for the President's imposition of martial law and suspension of the writ of habeas corpus were mostly
inaccurate, simulated, false and/or hyperbolic.

[9] Public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas
corpus in the whole of Mindanao.

Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of martial law or
suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of the privilege
of the writ of habeas corpus to be valid, there must be a concurrence of actual rebellion or invasion and the public
safety requirement. In his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute
Group were directed not only against government forces or establishments but likewise against civilians and their
properties.242 In addition and in relation to the armed hostilities, bomb threats were issued;243 road blockades and
checkpoints were set up; 244 schools and churches were burned;245 civilian hostages were taken and killed;246
non-Muslims or Christians were targeted;247 young male Muslims were forced to join their group; 248 medical
services and delivery of basic services were hampered;249 reinforcements of government troops and civilian
movement were hindered;250 and the security of the entire Mindanao Island was compromised.

Indeed, martial law and the suspension of the privilege of the writ ff habeas corpus are necessary for the protection of
the security of the natil.; suspension of the privilege of the writ of habeas corpus is "precautiona , and although it
might [curtail] certain rights of individuals, [it] is for t e purpose of defending and protecting the security of the state or
the entire country and our sovereign people".253 Commissioner Ople referred to the suspension of the privilege of
the writ of habeas corpus as a "form of immobilization" or "as a means of immobilizing potential internal enemies"
"especially in areas like Mindanao."
 36

To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all-
encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has
possession of documents and information classified as "confidential", the contents of which cannot be included in the
Proclamation or Report for reasons of national security. These documents may contain information detailing the
position of government troops and rebels, stock of firearms or ammunitions, ground commands and operations,
names of suspects and sympathizers, etc. , In fact, during the closed door session held by the Court, some
information came to light, although not mentioned in the Proclamation or Report. But then again, the discretion
whether to include the same in the Proclamation or Report is the judgment call of the President. In fact, petitioners
concede to this. During the oral argument, petitioner Lagman admitted that "the assertion of facts [in the Proclamation
and Report] is the call of the Preside

It is beyond cavil that the President can rely on intelligence repo1s and classified documents. "It is for the President
as [C]ommander-in- [C]hief of the Armed Forces to appraise these [classified evidence qr documents/]reports and be
satisfied that the public safety demands thb suspension of the writ."256 Significantly, respect to these so-called
classifietl documents is accorded even "when [the] authors of or witnesses to thes~ 257 I documents may not be
revealed."

The Court has no machinery or tool equal to that of the Commander-in-Chief to ably and properly assess the ground
conditions.

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the public safety requires
it, [the President] may x x x suspend the privilege of writ of habeas corpus or place the Philippines or any part thereof
under martial law." Clearly, the Constitution grants to the President the discretion to determine the territorial coverage
of martial law and the suspension of the privilege of the writ of habeas corpus. He may put the entire Philippines or
only a part thereof under martial law.

This is both an acknowledgement and a recognition that it is the Executive Department, particularly the President as
Commander-in-Chief, who is the repository of vital, classified, and live information necessary for and relevant in
calibrating the territorial application of martial law and the suspension of the privilege of the writ of habeas corpus. It,
too, is a concession that the President has the tactical and military support, and thus has a more informed
understanding of what is happening on the ground. Thus, the Constitution imposed a limitation on the period of
application, which is 60 days, unless sooner nullified, revoked or extended, but not on the territorial scope or area of
coverage; it merely stated "the Philippines or any part thereof," depending on the assessment of the President.

The Constitution has provided sufficient safeguards against possible abuses of Commander-inChief's powers; further
curtailment of Presidential powers should not only be discouraged but also avoided.

The Court can only act within the confines of its power. For the Court to overreach is to infringe upon another's
territory. Clearly, the power to determine the scope of territorial application belongs to the President. "The Court
cannot indulge in judicial legislation without violating the principle of separation of powers, and, hence, undermining
the foundation of our republican system."281

To reiterate, the Court is not equipped with the competence and logistical machinery to determine the strategical
value of other places in the military's efforts to quell the rebellion and restore peace. It would be engaging in an act of
adventurism if it dares to embark on a mission of deciphering the territorial metes and bounds of martial law. To be
blunt about it, hours after the proclamation of martial law none of the members of this Court could have divined that
more than ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and that the military would
have to secure those places also; none of us could have predicted that Cayamora Maute would be arrested in Davao
City or that his wife Ominta ' Romato Maute would be apprehended in Masiu, Lanao del Sur; and, none of us had an
inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would launch an attack in Cotabato City.

TERRORISM v. REBELLION

It is also of judicial notice that the insurgency in Mindanao has be' n ongoing for decades. While some groups have
sought legal and peace 1 means, others have resorted to violent extremism and terrorism. Rebelli n may be
subsumed under the crime of terrorism, which has a broader sco e covering a wide range of predicate crimes. In fact,
rebellion is only one f the various means by which terrorism can be committed.299 However, while the scope of
terrorism may be comprehensive, its purpose is distinct and well-defined. The objective of a "'terrorist" is to sow and
create a condition of widespread fear among the populace in order to coerce the government to give in to an unlawful
demand. This condition of widespread fear is traditionally achieved through bombing, kidnapping, mass killing, and
 37

beheading, among others. In contrast, the purpose of rebellion, as previously discussed, is political, i.e., (a) to remove
from the allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof; (ii)
any body of land, naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any
of their powers and prerogatives.

In determining what crime was committed, we have to look into the main objective of the malefactors. If it is political,
such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to establish a wilayat
therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and create a condition of
widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an
unlawful demand, the crime is terrorism. Here, we have already explained and ruled that the President did not err in
believing that what is going on in Marawi City is one contemplated under the crime of rebellion.

In any case, even assuming that the insurgency in Marawi City can also be characterized as terrorism, the same will
not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the
Human Security Act of 2007 expressly provides that "[n]othing in this Act shall be interpreted as a curtailment,
restriction or diminution of constitutionally recognized powers of the executive branch of the government." Thus, as
long as the President complies with all the requirements of Section 18, Article VII, the existence of terrorism cannot
prevent him from exercising his extraordinary power of proclaiming martial ' law or suspending the privilege of the writ
of habeas corpus.After all, the ~ ~I extraordinary powers of the President are bestowed on him by the Constitution.
No act of Congress can, therefore, curtail or diminish state powers.

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and terrorism are mutually
exclusive of each other that they cannot co-exist together. RA 93 72 does not expressly or impliedly repeal Art. 134 of
the RPC. And while rebellion is one of the predicate crimes of terrorism, one cannot absorb the other as they have
different elements.

BELGICA V. OCHOA (PORK BARREL CASE)

HISTORY of CONGRESSIONAL PORK BARREL

The term “pork barrel”, a political parlance of American-English origin, refers to an appropriation of government
spending meant for localized projects and secured solely or primarily to bring money to a representative’s district.
The earliest form of the pork barrel system is found in Section 3 of Act 3044, otherwise known as the Public Works
Act of 1922. Under this provision, release of funds and realignment of unexpended portions of an item or
appropriation were subject to the approval of a joint committee elected by the Senate and the House of
Representatives.
In 1950, members of Congress, by virtue of being representatives of the people, also became involved in project
identification.
The pork barrel system was temporarily discontinued when martial law was declared.
It reappeared in 1982 through an item in the General Appropriations Act (“GAA”) called “Support for Local
Development Projects” (“SLDP”). SLDP started the giving of lump-sum allocations to individual legislators. The SLDP
also began to cover not only public works project or “hard projects” but also covered “soft projects” such as those
which would fall under education, health and livelihood.
After the EDSA People Power Revolution and the restoration of democracy, the pork barrel was revived through the
“Mindanao Development Fund” and the “Visayas Development Fund”.
In 1990, the pork barrel was renamed “Countrywide Development Fund” (“CDF”). The CDF was meant to cover small
local infrastructure and other priority community projects.
CDF Funds were, with the approval of the President, released directly to implementing agencies subject to the
submission of the required list of projects and activities. Senators and congressmen could identify any kind of project
from “hard projects” such as roads, buildings and bridges to “soft projects” such as textbooks, medicines, and
scholarships.
In 1993, the CDF was further modified such that the release of funds was to be made upon the submission of the list
of projects and activities identified by individual legislators. This was also the first time when the Vice-President was
given an allocation.
The CDF contained the same provisions from 1994-1996 except that the Department of Budget and Management
was required to submit reports to the Senate Committee on Finance and the House Committee on Appropriations
regarding the releases made from the funds.
Congressional insertions (“CIs”) were another form of congressional pork barrel aside from the CDF. Examples of the
CIs include the DepEd School Building Fund, the Congressional Initiative Allocations, and the Public Works Fund,
among others.
 38

The allocations for the School Building Fund were made upon prior consultation with the representative of the
legislative district concerned and the legislators had the power to direct how, where and when these appropriations
were to be spent.
In 1999, the CDF was removed from the GAA and replaced by three separate forms of CIs: (i) Food Security Program
Fund, (ii) Lingap Para sa Mahihirap Fund, and (iii) Rural/Urban Development Infrastructure Program Fund. All three
contained a provision requiring prior consultation with members of Congress for the release of funds.
In 2000, the Priority Development Assistance Fund (“PDAF”) appeared in the GAA. PDAF required prior consultation
with the representative of the district before the release of funds. PDAF also allowed realignment of funds to any
expense category except personal services and other personnel benefits.
In 2005, the PDAF introduced the program menu concept which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be subsequently chosen by the identifying
authority. This was retained in the GAAs from 2006-2010.
It was during the Arroyo administration when the formal participation of non-governmental organizations in the
implementation of PDAF projects was introduced.
The PDAF articles from 2002-2010 were silent with respect to specific amounts for individual legislators.
In 2011, the PDAF Article in the GAA contained an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President. It also contained a provision on realignment of funds but with the qualification that
it may be allowed only once.
The 2013 PDAF Article allowed LGUs to be identified as implementing agencies. Legislators were also allowed to
identify programs/projects outside of his legislative district. Realignment of funds and release of funds were required
to be favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the
case may be.

MALAMPAYA FUNDS AND PRESIDENTIAL SOCIAL FUND

The use of the term pork barrel was expanded to include certain funds of the President such as the Malampaya Fund
and the Presidential Social Fund (“PSF”).
The Malampaya Fund was created as a special fund under Section 8 of Presidential Decree (“PD”) No. 910 issued by
President Ferdinand Marcos on March 22, 1976.
The PSF was created under Section 12, Title IV of PD No. 1869, or the Charter of the Philippine Amusement and
Gaming Corporation (“PAGCOR”), as amended by PD No. 1993. The PSF is managed and administered by the
Presidential Management Staff and is sourced from the share of the government in the aggregate gross earnings of
PAGCOR.

PORK BARREL MISUSE

In 1996, Marikina City Representative Romeo Candozo revealed that huge sums of money regularly went into the
pockets of legislators in the form of kickbacks.
In 2004, several concerned citizens sought the nullification of the PDAF but the Supreme Court dismissed the petition
for lack of evidentiary basis regarding illegal misuse of PDAF in the form of kickbacks.
In July 2013, the National Bureau of Investigation probed the allegation that a syndicate defrauded the government of
P10 billion using funds from the pork barrel of lawmakers and various government agencies for scores of ghost
projects.
In August 2013, the Commission on Audit released the results of a three-year audit investigation detailing the
irregularities in the release of the PDAF from 2007 to 2009.
Whistle-blowers also alleged that at least P900 million from the Malampaya Funds had gone into a dummy NGO.

ISSUE/S

PROCEDURAL ISSUES
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy, (b) the
issues raised are matters of policy not subject to judicial review, (c) petitioners have legal standing to sue, (d)
previous decisions of the Court bar the re-litigation of the constitutionality of the Pork Barrel system.

SUBSTANTIVE ISSUES
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws are unconstitutional for violating
the constitutional provisions on (a) separation of powers, (b) non-delegability of legislative power, (c) checks and
balances, (d) accountability, (e) political dynasties, (f) local autonomy.

RULING

PROCEDURAL ISSUES

(a) There is an actual and justiciable controversy

 39

There exists an actual and justiciable controversy in the cases. The requirement of contrariety of legal rights is
satisfied by the antagonistic positions of the parties regarding the constitutionality of the pork barrel system.
The case is ripe for adjudication since the challenged funds and the laws allowing for their utilization are currently
existing and operational and thereby posing an immediate or threatened injury to petitioners.
The case is not moot as the proposed reforms on the PDAF and the abolition thereof does not actually terminate the
controversy on the matter. The President does not have constitutional authority to nullify or annul the legal existence
of the PDAF.
The “moot and academic principle” cannot stop the Court from deciding the case considering that: (a) petitioners
allege grave violation of the constitution, (b) the constitutionality of the pork barrel system presents a situation of
exceptional character and is a matter of paramount public interest, (c) there is a practical need for a definitive ruling
on the system’s constitutionality to guide the bench, the bar and the public, and (d) the preparation and passage of
the national budget is an annual occurrence.

(b) Political Question Doctrine is Inapplicable

The intrinsic constitutionality of the “Pork Barrel System” is not an issue dependent upon the wisdom of the political
branches of the government but rather a legal one which the Constitution itself has commanded the Court to act
upon.
The 1987 Constitution expanded the concept of judicial power such that the Supreme Court has the power to
determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality on the part of the government.

(c) Petitioners have legal standing to sue

Petitioners have legal standing by virtue of being taxpayers and citizens of the Philippines.
As taxpayers, they are bound to suffer from the unconstitutional usage of public funds.
As citizens, the issues they have raised are matters of transcendental importance, of overreaching significance to
society, or of paramount public interest.

(d) The Petition is not barred by previous cases

The present case is not barred by the ruling in Philconsa vs. Enriquez because the Philconsa case was a limited
response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification
authority to Members of Congress.
On the contrary, the present cases involve a more holistic examination of (a) the inter-relation between the CDF and
the PDAF Articles with each other, and (b) the inter-relation of post-enactment measures contained within a particular
CDF or PDAF article, including not only those related to the area of project identification but also to the areas of fund
release and realignment.
Moreover, the Philconsa case was riddled with inherent constitutional inconsistencies considering that the authority to
identify projects is an aspect of appropriation and the power of appropriation is a form of legislative power thereby
lodged in Congress. This power cannot be exercised by individual members of Congress and the authority to
appropriate cannot be exercised after the GAA has already been passed.
The case of Lawyers Against Monopoly and Poverty vs. Secretary of Budget and Management does not also bar
judgment on the present case because it was dismissed on a procedural technicality and hence no controlling
doctrine was rendered.

SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL

(a) The separation of powers between the Executive and the Legislative Departments has been violated.
The post-enactment measures including project identification, fund release, and fund realignment are not related to
functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly
belong to the sphere of budget execution, which belongs to the executive department.
Legislators have been, in one form or another, authorized to participate in the various operational aspects of
budgeting, including ―the evaluation of work and financial plans for individual activities and the ― regulation and
release of funds in violation of the separation of powers principle.
Any provision of law that empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus unconstitutional.
That the said authority to identify projects is treated as merely recommendatory in nature does not alter its
unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law.
Respondents also failed to prove that the role of the legislators is only recommendatory in nature. They even
admitted that the identification of the legislator constitutes a mandatory requirement before the PDAF can be tapped
as a funding source.

(b)The principle of non-delegability of legislative powers has been violated

 40

The 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual legislators, violates
the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress.
That the power to appropriate must be exercised only through legislation is clear from Section 29(1), Article VI of the
1987 Constitution which states that: ― No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.
The legislators are individually exercising the power of appropriation because each of them determines (a) how much
of their PDAF fund would go to and (b) a specific project or beneficiary that they themselves also determine.

(c) Checks and balances

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the said
amount would be further divided among individual legislators who would then receive personal lump-sum allocations
and could, after the GAA is passed, effectively appropriate PDAF funds based on their own discretion.
This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a ―budget
within a budget which subverts the prescribed procedure of presentment and consequently impairs the President‘s
power of item veto.
It forces the President to decide between (a) accepting the entire PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.
In fact, even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation. This is because
the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and,
therefore, does not readily indicate a discernible item which may be subject to the President‘s power of item veto.

(d) The Congressional Pork Barrel partially prevents accountability as Congress is incapable of checking itself or its
members.
The fact that individual legislators are given post-enactment roles in the implementation of the budget makes it
difficult for them to become disinterested observers when scrutinizing, investigating or monitoring the implementation
of the appropriation law.
The conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in
effect, be checking on activities in which they themselves participate.
The concept of post-enactment authorization violates Section 14, Article VI of the 1987 Constitution, which prohibits
members of Congress to intervene in any matter before any office of the Government, because it renders them
susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual
legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
The use of his PDAF for re-election purposes is a matter which must be analyzed based on particular facts and on a
case-to-case basis.

(e) The constitutional provision regarding political dynasties is not self-executing.

Section 26, Article II of the 1987 Constitution, which provides that the state shall prohibit political dynasties as may be
defined by law, is not a self-executing provision.
Since there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the
Court must defer from ruling on this issue.

(f) The Congressional Pork Barrel violates constitutional principles on local autonomy
The Congressional Pork Barrel goes against the constitutional principles on local autonomy since it allows district
representatives, who are national officers, to substitute their judgments in utilizing public funds for local development.
The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the
specific interests and peculiarities of the district the legislator represents.
The allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration.
This concept of legislator control underlying the CDF and PDAF conflicts with the functions of the various Local
Development Councils (“LDCs”) which are already legally mandated to―assist the corresponding sanggunian in
setting the direction of economic and social development, and coordinating development efforts within its territorial
jurisdiction.
Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local affairs,
their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are
national officers that have no law-making authority except only when acting as a body.

SUBSTANTIVE ISSUES ON PRESIDENTIAL PORK BARREL

 41

(a) Section 8 of PD No. 910 and Section 12 of PD No. 1869 are valid appropriation laws.
For an appropriation law to be valid under Section 29 (1), Article VI of the 1987 Constitution, which provides that “No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law”, it is enough that (a)
the provision of law sets apart a determinate or determinable amount of money and (b) allocates the same for a
particular public purpose.
Section 8 of PD 910 is a valid appropriation law because it set apart a determinable amount: a Special Fund
comprised of ― all fees, revenues, and receipts of the [Energy Development] Board from any and all sources.
It also specified a public purpose: energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President.
Section 12 of PD No. 1869 is also a valid appropriation law because it set apart a determinable amount: [a]fter
deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate
gross earnings of [PAGCOR], or 60%[,] if the aggregate gross earnings be less than P150,000,000.00.
It also specified a public purpose: priority infrastructure development projects and x x x the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines.

(b) Section 8 of PD No. 910 and Section 12 of PD No. 1869 constitutes undue delegation of legislation powers.
The phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910
constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the President‘s authority with respect to the purpose for which the Malampaya
Funds may be used.
This phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and,
in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.
This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the use of the
Malampaya Funds ―to finance energy resource development and exploitation programs and projects of the
government, remains legally effective and subsisting.
Section 12 of PD No. 1869 constitutes an undue delegation of legislative powers because it lies independently
unfettered by any sufficient standard of the delegating law.
The law does not supply a definition of “priority infrastructure development projects” and hence, leaves the President
without any guideline to construe the same.
The delimitation of a project as one of “infrastructure” is too broad of a classification since the said term could pertain
to any kind of facility.

SPARK VS CA

This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued by the local
governments of Quezon City, Manila, and Navotas. The petition prays that a temporary restraining order (TRO) be
issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey Tiangco, as Mayors of their respective
local governments, to prohibit, refrain, and desist from implementing and enforcing these issuances, pending
resolution of this case, and eventually, declare the City of Manila's ordinance as ultra vires for being contrary to
Republic Act No. (RA) 9344,2 or the "Juvenile Justice and Welfare Act," as amended, and all curfew ordinances as
unconstitutional for violating the constitutional right of minors to travel, as well as the right of parents to rear their
children.

The Facts

Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors, several local
governments in Metro Manila started to strictly implement their curfew ordinances on minors through police
operations which were publicly known as part of "Oplan Rody."3

Among those local governments that implemented curfew ordinances were respondents: (a) Navotas City, through
Pambayang Ordinansa Blg. 99-02,4 dated August 26, 1999, entitled "Nagtatakda ng 'Curfew' ng mga Kabataan na
Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas, Kalakhang Maynila," as amended by
Pambayang Ordinansa Blg. 2002-13,5 dated June 6, 2002 (Navotas Ordinance); (b) City of Manila, through
Ordinance No. 80466 entitled "An Ordinance Declaring the Hours from 10:00 P.M. to 4:00A.M. of the Following Day
as 'Barangay Curfew Hours' for Children and Youths Below Eighteen (18) Years of Age; Prescribing Penalties
Therefor; and for Other Purposes" dated October 14, 2002 (Manila Ordinance); and (c) Quezon City, through
Ordinance No. SP-2301,7 Series of 2014, entitled "An Ordinance Setting for a [sic] Disciplinary Hours in Quezon City
for Minors from 10:00 P.M. to 5:00A.M., Providing Penalties for Parent/Guardian, for Violation Thereof and for Other
Purposes" dated July 31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances).8
 42

Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK)- an association of young adults
and minors that aims to forward a free and just society, in particular the protection of the rights and welfare of the
youth and minors10 - filed this present petition, arguing that the Curfew Ordinances are unconstitutional because they:
(a) result in arbitrary and discriminatory enforcement, and thus, fall under the void for vagueness doctrine; (b) suffer
from overbreadth by proscribing or impairing legitimate activities of minors during curfew hours; (c) deprive minors of
the right to liberty and the right to travel without substantive due process; and (d) deprive parents of their natural and
primary right in rearing the youth without substantive due process.11 In addition, petitioners assert that the Manila
Ordinance contravenes RA 9344, as amended by RA 10630.12

More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory enforcement as
there are no clear provisions or detailed standards on how law enforcers should apprehend and properly determine
the age of the alleged curfew violators.13 They further argue that the law enforcer's apprehension depends only on his
physical assessment, and, thus, subjective and based only on the law enforcer's visual assessment of the alleged
curfew violator.14

While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities exempted from the
operation of the imposed curfews, i.e., exemption of working students or students with evening class, they contend
that the lists of exemptions do not cover the range and breadth of legitimate activities or reasons as to why minors
would be out at night, and, hence, proscribe or impair the legitimate activities of minors during curfew hours.15

Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of the right to
liberty and the right to travel without substantive due process;16 and (b) fail to pass the strict scrutiny test, for not
being narrowly tailored and for employing means that bear no reasonable relation to their purpose.17 They argue that
the prohibition of minors on streets during curfew hours will not per se protect and promote the social and moral
welfare of children of the community.18

Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof, contravenes Section 57-A20
of RA 9344, as amended, given that the cited curfew provision imposes on minors the penalties of imprisonment,
reprimand, and admonition. They contend that the imposition of penalties contravenes RA 9344's express command
that no penalty shall be imposed on minors for curfew violations.21

Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the parents'
prerogative to impose them in the exercise of their natural and primary right in the rearing of the youth, and that even
if a compelling interest exists, less restrictive means are available to achieve the same. In this regard, they suggest
massive street lighting programs, installation of CCTVs (closed-circuit televisions) in public streets, and regular visible
patrols by law enforcers as other viable means of protecting children and preventing crimes at night. They further
opine that the government can impose more reasonable sanctions, i.e., mandatory parental counseling and education
seminars informing the parents of the reasons behind the curfew, and that imprisonment is too harsh a penalty for
parents who allowed their children to be out during curfew hours.22

The Issue Before the Court

The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are
unconstitutional.

The Court's Ruling

At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the dismissal of the
petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the Rules of Court to assail the
constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the Court, contrary to the hierarchy of courts
doctrine; and (c) the lack of actual controversy and standing to warrant judicial review.23

A. Propriety of the Petition for Certiorari and Prohibition.

Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle actual
controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."24 Section 1, Article VIII of the 1987 Constitution reads:
 43

ARTICLE VIII
JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentalitv of the Government.
(Emphasis and underscoring supplied)

Case law explains that the present Constitution has "expanded the concept of judicial power, which up to then was
confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and
enforceable."25

In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court "are the remedies
by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government may be determined under the Constitution."27 It was explained that "[w]ith respect
to the Court, x x x the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation,
board or officer exercising judicial, quasi-judicial or ministerial functions, but also to set right, undo[,] and restrain
any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second paragraph of Section 1, [Article VIII of
the 1987 Constitution cited above]."28

In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association, Inc.,29 it
was expounded that "[m]eanwhile that no specific procedural rule has been promulgated to enforce [the] 'expanded'
constitutional definition of judicial power and because of the commonality of 'grave abuse of discretion' as a ground
for review under Rule 65 and the courts' expanded jurisdiction, the Supreme Court - based on its power to relax its
rules - allowed Rule 65 to be used as the medium for petitions invoking the courts' expanded jurisdiction[.]"30

In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of Quezon City,
Manila, and Navotas in the exercise of their delegated legislative powers on the ground that these ordinances violate
the Constitution, specifically, the provisions pertaining to the right to travel of minors, and the right of parents to rear
their children. They also claim that the Manila Ordinance, by imposing penalties against minors, conflicts with RA
9344, as amended, which prohibits the imposition of penalties on minors for status offenses. It has been held that
"[t]here is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or
(2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias."31 In light of the foregoing,
petitioners correctly availed of the remedies of certiorari and prohibition, although these governmental actions were
not made pursuant to any judicial or quasi-judicial function.

B. Direct Resort to the Court.

Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of legislative and
executive enactments, the next question to be resolved is whether or not petitioners' direct resort to this Court is
justified.

The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court. The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is shared with the Court of Appeals
[(CA)] and the [Regional Trial Courts], a direct invocation of this Court's jurisdiction is allowed when there are
special and important reasons therefor, clearly and especially set out in the petition[.]"32 This Court is tasked to
resolve "the issue of constitutionality of a law or regulation at the first instance [if it] is of paramount
importance and immediately affects the social, economic, and moral well-being of the people,"33 as in this
case. Hence, petitioners' direct resort to the Court is justified.

C. Requisites of Judicial Review.

"The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for
 44

judicial inquiry, namely: (a) there must be anactual case or controversy calling for the exercise of judicial power; (b)
the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the very lis mota of the case."34 In this case, respondents assail the existence of the first two (2) requisites.

1. Actual Case or Controversy.

"Basic in the exercise of judicial power ó whether under the traditional or in the expanded setting ó is the presence of
an actual case or controversy."35 "[A]n actual case or controversy is one which 'involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.' In other words, 'there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."'36 According to recent jurisprudence, in the Court's
exercise of its expanded jurisdiction under the 1987 Constitution, this requirement is simplified "by merely requiring
a prima facie showing of grave abuse of discretion in the assailed governmental act ."37

"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished
or performed by either branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to himself as a result of the challenged action. He must show
that he has sustained or is immediately in danger of sustaining some direct injury as a result of the act complained
of."38

Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case given the
evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair the minors' and
parents' constitutional rights, and whether the Manila Ordinance goes against the provisions of RA 9344. Based on
their asseverations, petitioners have - as will be gleaned from the substantive discussions below - conveyed a prima
facie case of grave abuse of discretion, which perforce impels this Court to exercise its expanded jurisdiction. The
case is likewise ripe for adjudication, considering that the Curfew Ordinances were being implemented until the Court
issued the TRO39 enjoining their enforcement. The purported threat or incidence of injury is, therefore, not merely
speculative or hypothetical but rather, real and apparent.

2. Legal Standing.

"The question of locus standi or legal standing focuses on the determination of whether those assailing the
governmental act have the right of appearance to bring the matter to the court for adjudication. [Petitioners] must
show that they have a personal and substantial interest in the case, such that they have sustained or are in
immediate danger of sustaining, some direct injury as a consequence of the enforcement of the challenged
governmental act."40 "'[I]nterest' in the question involved must be material ó an interest that is in issue and will be
affected by the official act ó as distinguished from being merely incidental or general."41

"The gist of the question of [legal] standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected in
any of his constitutional rights by the operation of statute or ordinance, he has no standing."42

As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights, namely: (1) the
right of minors to freely travel within their respective localities; and (2) the primary right of parents to rear their
children. Related to the first is the purported conflict between RA 9344, as amended, and the penal provisions of the
Manila Ordinance.

Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to raise the issue
affecting the minor's right to travel,43 because: (a) she was still a minor at the time the petition was filed before this
Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b) as alleged, she travels from Manila to
Quezon City at night after school and is, thus, in imminent danger of apprehension by virtue of the Curfew
Ordinances. On the other hand, petitioners Joanne Rose Sace Lim, John Arvin Navarro Buenaagua, Ronel Baccutan
(Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted in the petition that they are all of legal age, and therefore,
beyond the ordinances' coverage. Thus, they are not proper subjects of the Curfew Ordinances, for which they could
base any direct injury as a consequence thereof.
 45

None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the parents' right to
rear their children as they have not shown that they stand before this Court as parent/s and/or guardian/s whose
constitutional parental right has been infringed. It should be noted that Clarissa is represented by her father, Julian
Villegas, Jr. (Mr. Villegas), who could have properly filed the petition for himself for the alleged violation of his
parental right. But Mr. Villegas did not question the Curfew Ordinances based on his primary right as a parent as he
only stands as the representative of his minor child, Clarissa, whose right to travel was supposedly infringed.

As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an action in
court.45 Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to allege that it was
authorized by its members who were affected by the Curfew Ordinances, i.e., the minors, to file this case on their
behalf.

Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy. More particularly,
Clarissa has standing only on the issue of the alleged violation of the minors' right to travel, but not on the alleged
violation of the parents' right.

These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the petitioners are
concerned, in view of the transcendental importance of the issues involved in this case. "In a number of cases, this
Court has taken a liberal stance towards the requirement of legal standing, especially when paramount interest is
involved. Indeed, when those who challenge the official act are able to craft an issue of transcendental
significance to the people, the Court may exercise its sound discretion and take cognizance of the suit. It
may do so in spite of the inability of the petitioners to show that they have been personally injured by the operation of
a law or any other government act."46

This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed under judicial
review. Not only is this Court asked to determine the impact of these issuances on the right of parents to rear their
children and the right of minors to travel, it is also requested to determine the extent of the State's authority to
regulate these rights in the interest of general welfare. Accordingly, this case is of overarching significance to the
public, which, therefore, impels a relaxation of procedural rules, including, among others, the standing requirement.

That being said, this Court now proceeds to the substantive aspect of this case.

A. Void for Vagueness.

Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their children, this Court
must first tackle petitioners' contention that the Curfew Ordinances are void for vagueness.

In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient enforcement
parameters, which leaves the enforcing authorities with unbridled discretion to carry out their provisions. They claim
that the lack of procedural guidelines in these issuances led to the questioning of petitioners Ronel and Mark Leo,
even though they were already of legal age. They maintain that the enforcing authorities apprehended the suspected
curfew offenders based only on their physical appearances and, thus, acted arbitrarily. Meanwhile, although they
conceded that the Quezon City Ordinance requires enforcers to determine the age of the child, they submit that
nowhere does the said ordinance require the law enforcers to ask for proof or identification of the child to show his
age.47

The arguments are untenable.

"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in
two (2) respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it,
fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle."48

In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they do not
properly identify any provision in any of the Curfew Ordinances, which, because of its vague terminology, fails to
provide fair warning and notice to the public of what is prohibited or required so that one may act accordingly.49The
void for vagueness doctrine is premised on due process considerations, which are absent from this particular
claim. In one case, it was opined that:
 46

[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due process
uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process uncertainty" involves
cases where the statutory language was so obscure that it failed to give adequate warning to those subject to its
prohibitions as well as to provide proper standards for adjudication. Such a definition encompasses the vagueness
doctrine. This perspective rightly integrates the vagueness doctrine with the due process clause, a necessary
interrelation since there is no constitutional provision that explicitly bars statutes that are "void-for-vagueness."50

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in the proper
apprehension of suspected curfew offenders. They do not assert any confusion as to what conduct the subject
ordinances prohibit or not prohibit but only point to the ordinances' lack of enforcement guidelines. The
mechanisms related to the implementation of the Curfew Ordinances are, however, matters of policy that are best left
for the political branches of government to resolve. Verily, the objective of curbing unbridled enforcement is not the
sole consideration in a void for vagueness analysis; rather, petitioners must show that this perceived danger of
unbridled enforcement stems from an ambiguous provision in the law that allows enforcement authorities to second-
guess if a particular conduct is prohibited or not prohibited. In this regard, that ambiguous provision of law
contravenes due process because agents of the government cannot reasonably decipher what conduct the law
permits and/or forbids. In Bykofsky v. Borough of Middletown,51 it was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc
and subjective basis, and vague standards result in erratic and arbitrary application based on individual impressions
and personal predilections.52

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the Curfew
Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be determined. Thus,
without any correlation to any vague legal provision, the Curfew Ordinances cannot be stricken down under the void
for vagueness doctrine.

Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected curfew
violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law enforcement agents
are still bound to follow the prescribed measures found in statutory law when implementing ordinances. Specifically,
RA 9344, as amended, provides:

Section 7. Determination of Age. - x x x The age of a child may be determinedfrom the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based
on information from the child himself/herself, testimonies of other persons, the physical appearance of the
child and other relevant evidence. (Emphases supplied)

This provision should be read in conjunction with the Curfew Ordinances because RA 10630 (the law that amended
RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to Section 57-A of RA 9344, as amended
by RA 10630,54minors caught in violation of curfew ordinances are children at risk and, therefore, covered by its
provisions.55 It is a long-standing principle that "[c]onformity with law is one of the essential requisites for the
validity of a municipal ordinance."56 Hence, by necessary implication, ordinances should be read and implemented
in conjunction with related statutory law.

Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to be a minor
violating the curfew, may therefore prove that he is beyond the application of the Curfew Ordinances by simply
presenting any competent proof of identification establishing their majority age. In the absence of such proof, the law
authorizes enforcement authorities to conduct a visual assessment of the suspect, which - needless to state - should
be done ethically and judiciously under the circumstances. Should law enforcers disregard these rules, the remedy is
to pursue the appropriate action against the erring enforcing authority, and not to have the ordinances invalidated.

All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.

B. Right of Parents to Rear their Children.

Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of their natural and
primary right in the rearing of the youth without substantive due process. In this regard, they assert that this right
includes the right to determine whether minors will be required to go home at a certain time or will be allowed to stay
late outdoors. Given that the right to impose curfews is primarily with parents and not with the State, the latter's
interest in imposing curfews cannot logically be compelling.57
 47

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in the
rearing of their children:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government. (Emphasis and underscoring
supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic efficiency and
the development of their moral character are characterized not only as parental rights, but also as parental duties.
This means that parents are not only given the privilege of exercising their authority over their children; they are
equally obliged to exercise this authority conscientiously. The duty aspect of this provision is a reflection of the State's
independent interest to ensure that the youth would eventually grow into free, independent, and well-developed
citizens of this nation. For indeed, it is during childhood that minors are prepared for additional obligations to society.
"[T]he duty to prepare the child for these [obligations] must be read to include the inculcation of moral
standards, religious beliefs, and elements of good citizenship."58 "This affirmative process of teaching, guiding,
and inspiring by precept and example is essential to the growth of young people into mature, socially responsible
citizens."59

By history and tradition, "the parental role implies a substantial measure of authority over one's children."60 In
Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that "constitutional interpretation has
consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children
is basic in the structure of our society."62 As in our Constitution, the right and duty of parents to rear their children
is not only described as "natural," but also as "primary." The qualifier "primary" connotes the parents' superior
right over the State in the upbringing of their children.63 The rationale for the State's deference to parental control
over their children was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as follows:

[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms of minors. The
State commonly protects its youth from adverse governmental action and from their own immaturity by requiring
parental consent to or involvement in important decisions by minors. But an additional and more important
justification for state deference to parental control over children is that "the child is not [a] mere creature of
the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations."65 (Emphasis and underscoring supplied)

While parents have the primary role in child-rearing, it should be stressed that "when actions concerning the child
have a relation to the public welfare or the well-being of the child, the [S]tate may act to promote these
legitimate interests."66 Thus, "[i]n cases in which harm to the physical or mental health of the child or to
public safety, peace, order, or welfare is demonstrated, these legitimate state interests may override the
parents' qualified right to control the upbringing of their children."67

As our Constitution itself provides, the State is mandated to support parents in the exercise of these rights and
duties. State authority is therefore, not exclusive of, but rather, complementary to parental supervision. In
Nery v. Lorenzo,68 this Court acknowledged the State's role as parens patriae in protecting minors, viz.:

[W]here minors are involved, the State acts as parens patriae. To it is cast the duty of protecting the rights of
persons or individual who because of age or incapacity are in an unfavorable position, vis-a≠ vis other
parties. Unable as they are to take due care of what concerns them, they have the political community to look after
their welfare. This obligation the state must live up to. It cannot be recreant to such a trust. As was set forth in an
opinion of the United States Supreme Court: "This prerogative of parens patriae is inherent in the supreme
power of every State, x x x."69 (Emphases and underscoring supplied)

As parens patriae, the State has the inherent right and duty to aid parents in the moral development of their
children,70 and, thus, assumes a supporting role for parents to fulfill their parental obligations. In Bellotti, it was held
that "[l]egal restriction on minors, especially those supportive of the parental role, may be important to the child's
chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.
Under the Constitution, the State can properly conclude that parents and others, teachers for example, who
have the primary responsibility for children's well-being are entitled to the support of the laws designed to
aid discharge of that responsibility."71
 48

The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of promoting their
children's well-being. As will be later discussed at greater length, these ordinances further compelling State interests
(particularly, the promotion of juvenile safety and the prevention of juvenile crime), which necessarily entail limitations
on the primary right of parents to rear their children. Minors, because of their peculiar vulnerability and lack of
experience, are not only more exposed to potential physical harm by criminal elements that operate during the night;
their moral well-being is likewise imperiled as minor children are prone to making detrimental decisions during this
time.72

At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not - whether
actually or constructively (as will be later discussed) - accompanied by their parents. This serves as an explicit
recognition of the State's deference to the primary nature of parental authority and the importance of parents' role in
child-rearing. Parents are effectively given unfettered authority over their children's conduct during curfew hours when
they are able to supervise them. Thus, in all actuality, the only aspect of parenting that the Curfew Ordinances
affects is the parents' prerogative to allow minors to remain in public places without parental
accompaniment during the curfew hours.73 In this respect, the ordinances neither dictate an over-all plan of
discipline for the parents to apply to their minors nor force parents to abdicate their authority to influence or
control their minors' activities.74 As such, the Curfew Ordinances only amount to a minimal - albeit reasonable -
infringement upon a parent's right to bring up his or her child.

Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend more time at
home. Consequently, this situation provides parents with better opportunities to take a more active role in their
children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the US court observed that the city
government "was entitled to believe x x x that a nocturnal curfew would promote parental involvement in a child's
upbringing. A curfew aids the efforts of parents who desire to protect their children from the perils of the street but are
unable to control the nocturnal behavior of those children."76 Curfews may also aid the "efforts of parents who prefer
their children to spend time on their studies than on the streets."77 Reason dictates that these realities observed in
Schleifer are no less applicable to our local context. Hence, these are additional reasons which justify the impact of
the nocturnal curfews on parental rights.

In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right to rear their
children.

C. Right to Travel.

Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to travel. They
claim that the liberty to travel is a fundamental right, which, therefore, necessitates the application of the strict scrutiny
test. Further, they submit that even if there exists a compelling State interest, such as the prevention of juvenile crime
and the protection of minors from crime, there are other less restrictive means for achieving the government's
interest.78 In addition, they posit that the Curfew Ordinances suffer from overbreadth by proscribing or impairing
legitimate activities of minors during curfew hours.79

Petitioner's submissions are partly meritorious.

At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that petitioners have
not claimed any transgression of their rights to free speech or any inhibition of speech-related conduct. In Southern
Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council (Southern Hemisphere),80 this Court explained that
"the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of
a facial challenge, applicable only to free speech cases,"81viz.:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot
areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly
swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of
constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her;
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. Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as
applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more
 49

narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with
the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit.
The Court assumes that an overbroad law's "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent
effect on the speech of those third parties.82 (Emphases and underscoring supplied)

In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free speech claims, the
Court, in at least two [(2)] cases, observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment,83 and that claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only spoken words. In Virginia v. Hicks,84 it was held
that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed
to speech or speech-related conduct. Attacks on overly broad statutes are justified by the 'transcendent value to all
society of constitutionally protected expression."'85

In the more recent case of Spouses Imbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can only be
raised on the basis of overbreadth and not on vagueness. Southern Hemisphere demonstrated how vagueness
relates to violations of due process rights, whereas facial challenges are raised on the basis of overbreadth and
limited to the realm of freedom of expression."87

That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there being no claimed
curtailment of free speech. On the contrary, however, this Court finds proper to examine the assailed regulations
under the strict scrutiny test.

The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III of the 1987
Constitution, to wit:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of
national security, public safety, or public health, as may be provided by law. (Emphases and underscoring
supplied)

Jurisprudence provides that this right refers to the right to move freely from the Philippines to other countries or within
the Philippines.89 It is a right embraced within the general concept of liberty.90 Liberty - a birthright of every person -
includes the power of locomotion91 and the right of citizens to be free to use their faculties in lawful ways and to live
and work where they desire or where they can best pursue the ends of life.92

The right to travel is essential as it enables individuals to access and exercise their other rights, such as the rights to
education, free expression, assembly, association, and religion.93 The inter-relation of the right to travel with other
fundamental rights was briefly rationalized in City of Maquoketa v. Russell,94 as follows:

Whenever the First Amendment rights of freedom of religion, speech, assembly, and association require one to move
about, such movement must necessarily be protected under the First Amendment. Restricting movement in those
circumstances to the extent that First Amendment Rights cannot be exercised without violating the law is
equivalent to a denial of those rights. One court has eloquently pointed this out:

We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom of travel and
movement. If, for any reason, people cannot walk or drive to their church, their freedom to worship is impaired. If, for
any reason, people cannot walk or drive to the meeting hall, freedom of assembly is effectively blocked. If, for any
reason, people cannot safely walk the sidewalks or drive the streets of a community, opportunities for freedom of
speech are sharply limited. Freedom of movement is inextricably involved with freedoms set forth in the First
Amendment. (Emphases supplied)

Nevertheless, grave and overriding considerations of public interest justify restrictions even if made against
fundamental rights. Specifically on the freedom to move from one place to another, jurisprudence provides that this
right is not absolute.95 As the 1987 Constitution itself reads, the State96 may impose limitations on the exercise of this
right, provided that they: (1) serve the interest of national security, public safety, or public health; and (2) are
provided by law.97

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and prevention of juvenile
crime, inarguably serve the interest of public safety. The restriction on the minor's movement and activities within the
confines of their residences and their immediate vicinity during the curfew period is perceived to reduce the
 50

probability of the minor becoming victims of or getting involved in crimes and criminal activities. As to the second
requirement, i.e., that the limitation "be provided by law," our legal system is replete with laws emphasizing the
State's duty to afford special protection to children, i.e., RA 7610,98 as amended, RA 9775,99 RA 9262,100 RA 9851, 101
RA 9344,102 RA 10364,103 RA 9211,104 RA 8980,105 RA 9288,106 and Presidential Decree (PD) 603,107 as amended.

Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government units, through
their city or municipal councils, to set curfew hours for children. It reads:

Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew hours for
children as may be warranted by local conditions. The duty to enforce curfew ordinances shall devolve upon the
parents or guardians and the local authorities.

x x x x (Emphasis and underscoring supplied)

As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have done in this
case) and enforce the same through their local officials. In other words, PD 603 provides sufficient statutory basis - as
required by the Constitution - to restrict the minors' exercise of the right to travel.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally permissible. In
this relation, this Court recognizes that minors do possess and enjoy constitutional rights,108but the exercise of
these rights is not co-extensive as those of adults.109 They are always subject to the authority or custody of
another, such as their parent/s and/or guardian/s, and the State.110 As parens patriae, the State regulates and, to a
certain extent, restricts the minors' exercise of their rights, such as in their affairs concerning the right to vote,111 the
right to execute contracts,112 and the right to engage in gainful employment.113 With respect to the right to travel,
minors are required by law to obtain a clearance from the Department of Social Welfare and Development before
they can travel to a foreign country by themselves or with a person other than their parents.114 These limitations
demonstrate that the State has broader authority over the minors' activities than over similar actions of adults,115 and
overall, reflect the State's general interest in the well-being of minors.116 Thus, the State may impose limitations on
the minors' exercise of rights even though these limitations do not generally apply to adults.

In Bellotti,117 the US Supreme Court identified three (3) justifications for the differential treatment of the minors'
constitutional rights. These are:first, the peculiar vulnerability of children; second, their inability to make critical
decisions in an informed and mature manner; and third, the importance of the parental role in child rearing:118

[On the first reason,] our cases show that although children generally are protected by the same constitutional
guarantees against governmental deprivations as are adults, the State is entitled to adjust its legal system to
account for children's vulnerability and their needs for 'concern, ...sympathy, and ... paternal attention. x x x.

[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the formative years of
childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and
avoid choices that could be detrimental to them. x x x.

xxxx

[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations on the freedoms
of minors. The State commonly protects its youth from adverse governmental action and from their own immaturity by
requiring parental consent to or involvement in important decisions by minors. x x x.

xxxx

x x x Legal restrictions on minors, especially those supportive of the parental role, may be important to the
child's chances for the full growth and maturity that make eventual participation in a free society meaningful and
rewarding.119 (Emphases and underscoring supplied)

Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened dangers on the
streets to minors, as compared to adults:

A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full
maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad
 51

range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more
especially in public places, and the possible harms arising from other activities subject to all the diverse
influences of the [streets]. It is too late now to doubt that legislation appropriately designed to reach such evils is
within the state's police power, whether against the parent's claim to control of the child or one that religious scruples
dictate contrary action.

It is true children have rights, in common with older people, in the primary use of highways. But even in such use
streets afford dangers for them not affecting adults. And in other uses, whether in work or in other things,
this difference may be magnified.121 (Emphases and underscoring supplied)

For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights, provided,
they are singled out on reasonable grounds.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of
classifications.122 The strict scrutiny test applies when a classification either (i) interferes with the exercise of
fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect classes.123
The intermediate scrutiny test applies when a classification does not involve suspect classes or fundamental rights,
but requires heightened scrutiny, such as in classifications based on gender and legitimacy.124 Lastly, the rational
basis test applies to all other subjects not covered by the first two tests.125

Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our Constitution,
the strict scrutiny test126 is the applicable test.127 At this juncture, it should be emphasized that minors enjoy the same
constitutional rights as adults; the fact that the State has broader authority over minors than over adults does not
trigger the application of a lower level of scrutiny.128 In Nunez v. City of San Diego (Nunez),129 the US court illumined
that:

Although many federal courts have recognized that juvenile curfews implicate the fundamental rights of minors, the
parties dispute whether strict scrutiny review is necessary. The Supreme Court teaches that rights are no less
"fundamental" for minors than adults, but that the analysis of those rights may differ:

Constitutional rights do not mature and come into being magically only when one attains the state-defined age of
majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. The
Court[,] indeed, however, [has long] recognized that the State has somewhat broader authority to regulate the
activities of children than of adults. x x x. Thus, minors' rights are not coextensive with the rights of adults because
the state has a greater range of interests that justify the infringement of minors' rights.

The Supreme Court has articulated three specific factors that, when applicable, warrant differential analysis of the
constitutional rights of minors and adults: x x x. The Bellotti test [however] does not establish a lower level of
scrutiny for the constitutional rights of minors in the context of a juvenile curfew. Rather, the Bellotti
framework enables courts to determine whether the state has a compelling state interest justifying greater restrictions
on minors than on adults. x x x.

x x x Although the state may have a compelling interest in regulating minors differently than adults, we do
not believe that [a] lesser degree of scrutiny is appropriate to review burdens on minors' fundamental rights.
x x x.

Accordingly, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)

The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of minors as
enumerated in Bellotti vis-a-vis the State's duty as parens patriae to protect and preserve their well-being with the
compelling State interests justifying the assailed government act. Under the strict scrutiny test, a legislative
classification that interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect
class is presumed unconstitutional.131 Thus, the government has the burden of proving that the classification (i)
is necessary to achieve a compelling State interest, and (ii) is the least restrictive means to protect such
interest or the means chosen is narrowly tailored to accomplish the interest.132

a. Compelling State Interest.

Jurisprudence holds that compelling State interests include constitutionally declared policies.133This Court has ruled
that children's welfare and the State's mandate to protect and care for them as parens patriae constitute
 52

compelling interests to justify regulations by the State.134 It is akin to the paramount interest of the state for which
some individual liberties must give way.135 As explained in Nunez, the Bellotti framework shows that the State has a
compelling interest in imposing greater restrictions on minors than on adults. The limitations on minors under
Philippine laws also highlight this compelling interest of the State to protect and care for their welfare.
In this case, respondents have sufficiently established that the ultimate objective of the Curfew Ordinances is to keep
unsupervised minors during the late hours of night time off of public areas, so as to reduce - if not totally eliminate -
their exposure to potential harm, and to insulate them against criminal pressure and influences which may even
include themselves. As denoted in the "whereas clauses" of the Quezon City Ordinance, the State, in imposing
nocturnal curfews on minors, recognizes that:

[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance, education, and
moral development, which [lead] them into exploitation, drug addiction, and become vulnerable to and at the risk of
committing criminal offenses;

xxxx

[d] as a consequence, most of minor children become out-of-school youth, unproductive by-standers, street children,
and member of notorious gangs who stay, roam around or meander in public or private roads, streets or other public
places, whether singly or in groups without lawful purpose or justification;

xxxx

[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming around, loitering or
wandering in the evening are the frequent personalities involved in various infractions of city ordinances and national
laws;

[g] it is necessary in the interest of public order and safety to regulate the movement of minor children during night
time by setting disciplinary hours, protect them from neglect, abuse or cruelty and exploitation, and other conditions
prejudicial or detrimental to their development;

[h] to strengthen and support parental control on these minor children, there is a need to put a restraint on the
tendency of growing number of youth spending their nocturnal activities wastefully, especially in the face of the
unabated rise of criminality and to ensure that the dissident elements of society are not provided with potent avenues
for furthering their nefarious activities[.]136

The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City Council to support its
passage of the curfew ordinance subject of that case, may serve as a guidepost to our own treatment of the present
case. Significantly, in Schleifer, the US court recognized the entitlement of elected bodies to implement policies for a
safer community, in relation to the proclivity of children to make dangerous and potentially life-shaping decisions
when left unsupervised during the late hours of night:

Charlottesville was constitutionally justified in believing that its curfew would materially assist its first stated
interestóthat of reducing juvenile violence and crime. The City Council acted on the basis of information from many
sources, including records from Charlottesville's police department, a survey of public opinion, news reports, data
from the United States Department of Justice, national crime reports, and police reports from other localities. On the
basis of such evidence, elected bodies are entitled to conclude that keeping unsupervised juveniles off the
streets late at night will make for a safer community. The same streets may have a more volatile and less
wholesome character at night than during the day. Alone on the streets at night children face a series of
dangerous and potentially life-shaping decisions. Drug dealers may lure them to use narcotics or aid in their sale.
Gangs may pressure them into membership or participation in violence. "[D]uring the formative years of childhood
and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that
could be detrimental to them." Those who succumb to these criminal influences at an early age may persist in
their criminal conduct as adults. Whether we as judges subscribe to these theories is beside the point. Those
elected officials with their finger on the pulse of their home community clearly did. In attempting to reduce through its
curfew the opportunities for children to come into contact with criminal influences,the City was directly advancing
its first objective of reducing juvenile violence and crime.138 (Emphases and underscoring supplied; citations
omitted)

Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila presented
statistical data in their respective pleadings showing the alarming prevalence of crimes involving juveniles, either as
victims or perpetrators, in their respective localities.139
 53

Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to their police
power under the general welfare clause.140 In this light, the Court thus finds that the local governments have not
only conveyed but, in fact, attempted to substantiate legitimate concerns on public welfare, especially with
respect to minors. As such, a compelling State interest exists for the enactment and enforcement of the Curfew
Ordinances.

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the restrictions
set forth in the Curfew Ordinances are narrowly tailored or provide the least restrictive means to address the cited
compelling State interest - the second requirement of the strict scrutiny test.

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise that citizens should not be
hampered from pursuing legitimate activities in the exercise of their constitutional rights. While rights may be
restricted, the restrictions must be minimal or only to the extent necessary to achieve the purpose or to address the
State's compelling interest. When it is possible for governmental regulations to be more narrowly drawn to
avoid conflicts with constitutional rights, then they must be so narrowly drawn.141

Although treated differently from adults, the foregoing standard applies to regulations on minors as they are still
accorded the freedom to participate in any legitimate activity, whether it be social, religious, or civic.142 Thus, in the
present case, each of the ordinances must be narrowly tailored as to ensure minimal constraint not only on the
minors' right to travel but also on their other constitutional rights.143

In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being narrowly drawn,
resulting in unnecessary curtailment of minors' rights to freely exercise their religion and to free speech.145 It observed
that:

The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at the local
Roman Catholic Church or Christmas Eve services at the various local Protestant Churches. It would likewise
prohibit them from attending the New [Year's] Eve watch services at the various churches. Likewise it would prohibit
grandparents, uncles, aunts or adult brothers and sisters from taking their minor relatives of any age to the above
mentioned services. x x x.

xxxx

Under the ordinance, during nine months of the year a minor could not even attend the city council meetings if
they ran past 10:30 (which they frequently do) to express his views on the necessity to repeal the curfew ordinance,
clearly a deprivation of his First Amendment right to freedom of speech.

xxxx

[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very narrowly drawn
ordinance of many pages with eleven exceptions and was very carefully drafted in an attempt to pass constitutional
muster. It specifically excepted [the] exercise of First Amendment rights, travel in a motor vehicle and
returning home by a direct route from religious, school, or voluntary association activities. (Emphases
supplied)

After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the Quezon City
Ordinance meets the above-discussed requirement, while the Manila and Navotas Ordinances do not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a) minors
accompanied by their parents, family members of legal age, or guardian; (b) those running lawful errands such as
buying of medicines, using of telecommunication facilities for emergency purposes and the like; (c) night school
students and those who, by virtue of their employment, are required in the streets or outside their residence after
10:00 p.m.; and (d) those working at night.146

For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes; (b) those working
at night; (c) those who attended a school or church activity, in coordination with a specific barangay office; (d) those
traveling towards home during the curfew hours; (e) those running errands under the supervision of their parents,
guardians, or persons of legal age having authority over them; (f) those involved in accidents, calamities, and the like.
 54

It also exempts minors from the curfew during these specific occasions: Christmas eve, Christmas day, New Year's
eve, New Year's day, the night before the barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day, Holy
Thursday, Good Friday, Black Saturday, and Easter Sunday.147

This Court observes that these two ordinances are not narrowly drawn in that their exceptions are inadequate and
therefore, run the risk of overly restricting the minors' fundamental freedoms. To be fair, both ordinances protect the
rights to education, to gainful employment, and to travel at night from school or work.148 However, even with those
safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the
reasonable exercise of the minors' rights of association, free exercise of religion, rights to peaceably assemble, and
of free expression, among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected liberties. The
Navotas Ordinance is apparently more protective of constitutional rights than the Manila Ordinance; nonetheless, it
still provides insufficient safeguards as discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them from engaging in legitimate
non-school or non-church activities in the streets or going to and from such activities; thus, their freedom of
association is effectively curtailed. It bears stressing that participation in legitimate activities of organizations, other
than school or church, also contributes to the minors' social, emotional, and intellectual development, yet, such
participation is not exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and Christmas day, it
effectively prohibits minors from attending traditional religious activities (such as simbang gabi) at night without
accompanying adults, similar to the scenario depicted in Mosier.149 This legitimate activity done pursuant to the
minors' right to freely exercise their religion is therefore effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or attend city
council meetings to voice out their concerns in line with their right to peaceably assemble and to free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew hours, but the
Court finds no reason to prohibit them from participating in these legitimate activities during curfew hours. Such
proscription does not advance the State's compelling interest to protect minors from the dangers of the streets at
night, such as becoming prey or instruments of criminal activity. These legitimate activities are merely hindered
without any reasonable relation to the State's interest; hence, the Navotas Ordinance is not narrowly drawn. More so,
the Manila Ordinance, with its limited exceptions, is also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions, which are
essentially determinative of the scope and breadth of the curfew regulations, are inadequate to ensure protection of
the above-mentioned fundamental rights. While some provisions may be valid, the same are merely ancillary thereto;
as such, they cannot subsist independently despite the presence150 of any separability clause.151

The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently safeguards the
minors' constitutional rights. It provides the following exceptions:

Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by the provisions of
this ordinance;
(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony, religious mass, and/or other extra-
curricular activities of their school or organization wherein their attendance are required or otherwise
indispensable, or when such minors are out and unable to go home early due to circumstances
beyond their control as verified by the proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as conflagration, earthquake,
hospitalization, road accident, law enforcers encounter, and similar incidents[;]
(d) When the minor is engaged in an authorized employment activity, or going to or returning home from the
same place of employment activity without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no violation of this
Ordinance;
 55

(f) When the minor is involved in an emergency;

(g) When the minor is out of his/her residence attending an official school, religious, recreational,
educational, social, communitv or other similar private activity sponsored by the city, barangay,
school, or other similar private civic/religious organization/group (recognized by the community) that
supervises the activity or when the minor is going to or returning home from such activity, without
any detour or stop; and
(h) When the minor can present papers certifying that he/she is a student and was dismissed from his/her
class/es in the evening or that he/she is a working student.152 (Emphases and underscoring supplied)

As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is more narrowly
drawn to sufficiently protect the minors' rights of association, free exercise of religion, travel, to peaceably assemble,
and of free expression.

Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of these
aforementioned rights. These items uphold the right of association by enabling minors to attend both official
and extra-curricular activities not only of their school or church but also of other legitimate organizations.
The rights to peaceably assemble and of free expression are also covered by these items given that the
minors' attendance in the official activities of civic or religious organizations are allowed during the curfew
hours. Unlike in the Navotas Ordinance, the right to the free exercise of religion is sufficiently safeguarded in the
Quezon City Ordinance by exempting attendance at religious masses even during curfew hours. In relation to
their right to travel, the ordinance allows the minor-participants to move to and from the places where these
activities are held. Thus, with these numerous exceptions, the Quezon City Ordinance, in truth, only prohibits
unsupervised activities that hardly contribute to the well-being of minors who publicly loaf and loiter within
the locality at a time where danger is perceivably more prominent.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful errands or
engage in legitimate activities during the night, notwithstanding curfew hours. As astutely observed by Senior
Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during the deliberations on this
case, parental permission is implicitly considered as an exception found in Section 4, item (a) of the Quezon City
Ordinance, i.e., "[t]hose accompanied by their parents or guardian", as accompaniment should be understood not
only in its actual but also in its constructive sense. As the Court sees it, this should be the reasonable construction of
this exception so as to reconcile the juvenile curfew measure with the basic premise that State interference is not
superior but only complementary to parental supervision. After all, as the Constitution itself prescribes, the parents'
right to rear their children is not only natural but primary.

Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing with the
welfare of minors who are presumed by law to be incapable of giving proper consent due to their incapability to fully
understand the import and consequences of their actions. In one case it was observed that:

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.153

Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and balancing the same
against the State's compelling interest to promote juvenile safety and prevent juvenile crime, this Court finds that the
curfew imposed under the Quezon City Ordinance is reasonably justified with its narrowly drawn exceptions and
hence, constitutional. Needless to say, these exceptions are in no way limited or restricted, as the State, in
accordance with the lawful exercise of its police power, is not precluded from crafting, adding, or modifying
exceptions in similar laws/ordinances for as long as the regulation, overall, passes the parameters of scrutiny as
applied in this case.

D. Penal Provisions of the Manila Ordinance.

Going back to the Manila Ordinance, this Court deems it proper - as it was raised- to further discuss the validity of its
penal provisions in relation to RA 9344, as amended.

To recount, the Quezon City Ordinance, while penalizing the parentis or guardian under Section 8 thereof,154 does not
impose any penalty on the minors. For its part, the Navotas Ordinance requires the minor, along with his or her
 56

parent/s or guardian/s, to render social civic duty and community service either in lieu of - should the parent/s or
guardian/s of the minor be unable to pay the fine imposed - or in addition to the fine imposed therein.155Meanwhile,
the Manila Ordinance imposed various sanctions to the minor based on the age and frequency of violations,
to wit:

SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:

(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a REPRIMAND for the
youth offender and ADMONITION to the offender's parent, guardian or person exercising parental authority.

(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the sanction/penalty shall be:

1. For the FIRST OFFENSE, Reprimand and Admonition;

2. For the SECOND OFFENSE, Reprimand and Admonition, and a warning about the
legal impostitions in case of a third and subsequent violation; and
3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one (1) day to ten
(10) days, or a Fine of TWO THOUSAND PESOS (Php2,000.00), or both at the
discretion of the Court, PROVIDED, That the complaint shall be filed by the Punong
Barangay with the office of the City Prosecutor.156 (Emphases and underscoring supplied).

Thus springs the question of whether local governments could validly impose on minors these sanctions - i.e., (a)
community service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently, Sections 57 and 57-A
of RA 9344, as amended, prohibit the imposition of penalties on minors for status offenses such as curfew
violations, viz.:

SEC. 57. Status Offenses. ó Any conduct not considered an offense or not penalized if committed by an adult
shall not be considered an offense and shall not be punished if committed by a child.

SEC. 57-A. Violations of Local Ordinances. ó Ordinances enacted by local governments concerning juvenile
status offenses such as, but not limited to, curfew violations, truancy, parental disobedience, anti-smoking and
anti-drinking laws, as well as light offenses and misdemeanors against public order or safety such as, but not limited
to, disorderly conduct, public scandal, harassment, drunkenness, public intoxication, criminal nuisance, vandalism,
gambling, mendicancy, littering, public urination, and trespassing, shall be for the protection of children. No
penalty shall be imposed on children for said violations, and they shall instead be brought to their residence or to
any barangay official at the barangay hall to be released to the custody of their parents. Appropriate intervention
programs shall be provided for in such ordinances. The child shall also be recorded as a "child at risk" and not as
a "child in conflict with the law." The ordinance shall also provide for intervention programs, such as counseling,
attendance in group activities for children, and for the parents, attendance in parenting education seminars.
(Emphases and underscoring supplied.)

To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of minors, when the
similar conduct of adults are not considered as an offense or penalized (i.e., status offenses). Instead, what they
prohibit is the imposition of penalties on minors for violations of these regulations. Consequently, the enactment of
curfew ordinances on minors, without penalizing them for violations thereof, is not violative of Section 57-A.

"Penalty" 157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment or fine";158
"[p]unishment imposed by lawful authority upon a person who commits a deliberate or negligent act."159 Punishment,
in turn, is defined as "[a] sanction - such as fine, penalty, confinement, or loss of property, right, or privilege -
assessed against a person who has violated the law."160

The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in violation of
the regulations are without legal consequences. Section 57-A thereof empowers local governments to adopt
appropriate intervention programs, such as community-based programs161 recognized under Section 54162 of the
same law.

In this regard, requiring the minor to perform community service is a valid form of intervention program that a local
government (such as Navotas City in this case) could appropriately adopt in an ordinance to promote the welfare of
minors. For one, the community service programs provide minors an alternative mode of rehabilitation as they
promote accountability for their delinquent acts without the moral and social stigma caused by jail detention. In the
same light, these programs help inculcate discipline and compliance with the law and legal orders. More importantly,
 57

they give them the opportunity to become productive members of society and thereby promote their integration to and
solidarity with their community.

The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57 and 57-A of RA
9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's misdemeanor.
Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning against fault or oversight."163
The Black's Law Dictionary defines admonition as "[a]n authoritatively issued warning or censure";164 while the
Philippine Law Dictionary defines it as a "gentle or friendly reproof, a mild rebuke, warning or reminder, [counseling],
on a fault, error or oversight, an expression of authoritative advice or warning."165 Notably, the Revised Rules on
Administrative Cases in the Civil Service (RRACCS) and our jurisprudence in administrative cases explicitly declare
that "a warning or admonition shall not be considered a penalty."166

In other words, the disciplinary measures of community-based programs and admonition are clearly not penalties - as
they are not punitive in nature - and are generally less intrusive on the rights and conduct of the minor. To be clear,
their objectives are to formally inform and educate the minor, and for the latter to understand, what actions must be
avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment imposed by the
City of Manila on the minor. Reprimand is generally defined as "a severe or formal reproof."167 The Black's Law
Dictionary defines it as "a mild form of lawyer discipline that does not restrict the lawyer's ability to practice law";168
while the Philippine Law Dictionary defines it as a "public and formal censure or severe reproof, administered to a
person in fault by his superior officer or body to which he belongs. It is more than just a warning or admonition."169 In
other words, reprimand is a formal and public pronouncement made to denounce the error or violation committed, to
sharply criticize and rebuke the erring individual, and to sternly warn the erring individual including the public against
repeating or committing the same, and thus, may unwittingly subject the erring individual or violator to unwarranted
censure or sharp disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate that
reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our various criminal
and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended, evidently prohibits.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o penalty shall
be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for imposing the sanctions of
reprimand, fine, and/or imprisonment on minors for curfew violations, portions of Section 4 of the Manila Ordinance
directly and irreconcilably conflict with the clear language of Section 57-A of RA 9344, as amended, and hence,
invalid. On the other hand, the impositions of community service programs and admonition on the minors are allowed
as they do not constitute penalties.

CONCLUSION

In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict scrutiny test -
that is, that the State has sufficiently shown a compelling interest to promote juvenile safety and prevent juvenile
crime in the concerned localities, only the Quezon City Ordinance has passed the second prong of the strict scrutiny
test, as it is the only issuance out of the three which provides for the least restrictive means to achieve this interest. In
particular, the Quezon City Ordinance provides for adequate exceptions that enable minors to freely exercise their
fundamental rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve the State's purpose.
Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also been construed
to include parental permission as a constructive form of accompaniment and hence, an allowable exception to the
curfew measure; the manner of enforcement, however, is left to the discretion of the local government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while the Quezon
City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand and
fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following the rule that
ordinances should always conform with the law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLY GRANTED. The Court hereby declares Ordinance No. 8046, issued by the
local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as amended by Pambayang
Ordinansa Blg. 2002-13 issued by the local government of Navotas City, UNCONSTITUTIONAL and, thus, NULL
 58

and VOID; while Ordinance No. SP-2301, Series of 2014, issued by the local government of the Quezon City is
declared CONSTITUTIONAL and, thus,VALID in accordance with this Decision..

RODRIGUEZ (WRIT OF AMPARO)

Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari dated 20 April 2010
(G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August 2010 (G.R. No. 193160).1 Both Petitions
assail the 12 April 2010 Decision of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.

Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt. Ameto G. Tolentino,
PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S. Matutina, or their
replacements in their official posts if they have already vacated the same, are ORDERED to furnish this Court within
five (5) days from notice of this decision, official or unofficial reports pertaining to petitioner – covering but not limited
to intelligence reports, operation reports and provost marshal reports prior to, during and subsequent to September 6,
2009 – made by the 5th Infantry Division, Philippine Army, its branches and subsidiaries, including the 17th Infantry
Battalion, Philippine Army.

The above-named respondents are also DIRECTED to refrain from using the said reports in any transaction or
operation of the military. Necessarily, the afore-named respondents are ORDERED to expunge from the records of
the military all documents having any reference to petitioner.

Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame Versoza, Antonio
Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no further violation of petitioner’s rights
to life, liberty and security is committed against the latter or any member of his family.

The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her presidential
immunity from suit. Similarly, the petition is DISMISSED with respect to respondents Calog and George Palacpac or
Harry for lack of merit.

Petitioner’s prayer for issuance of a temporary protection order and inspection order is DENIED.

Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160. He is a member of
Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng
Pilipinas (KMP).

On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General (PDG.) Jesus A.
Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De
Vera, First Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz
(Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and
petitioners in G.R. No. 193160. At the time the events relevant to the present Petitions occurred, former President
Arroyo was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt. Matutina
and Lt. Col. Mina were officers of the Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special
Investigators of the Commission on Human Rights (CHR) in Region II.

Antecedent Facts

Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya, making its
members targets of extrajudicial killings and enforced disappearances.2

On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard a tricycle driven
by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him into a car. Inside the vehicle were
several men in civilian clothes, one of whom was holding a .45 caliber pistol. Subsequently, three more persons
arrived, and one of them carried a gun at his side. Two men boarded the car, while the others rode on the tricycle.3

The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started punching him.
The car travelled towards the direction of Sta. Teresita-Mission and moved around the area until about 2:00 a.m.
 59

During the drive, the men forced Rodriguez to confess to being a member of the New People’s Army (NPA), but he
remained silent. The car then entered a place that appeared to be a military camp. There were soldiers all over the
area, and there was a banner with the word "Bravo" written on it. Rodriguez later on learned that the camp belonged
to the 17th Infantry Battalion of the Philippine Army.4

Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his membership in
the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men hit him on the head to wake him
up. After the interrogation, two of the men guarded him, but did not allow him to sleep.5

In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and made him board a
vehicle. While they were in transit, the soldiers repeatedly hit him in the head and threatened to kill him. When the car
stopped after about ten minutes, the soldiers brought him to a room, removed his blindfold, and forced him to confess
to being a member of the NPA. During the interrogation, the soldiers repeatedly hit him on the head. Thereafter, he
was detained inside the room for the entire day. The soldiers tied his stomach to a papag, and gave him rice and
viand. Fearing that the food might be poisoned, he refused to eat anything. He slept on the papag while being tied to
it at the waist.6

On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and Mission. While
passing houses along the way, the men asked him if his contacts lived in those houses. When he failed to answer, a
soldier pointed a gun to his head and threatened to kill him and his family. Because he remained silent, the soldiers
beat him and tied him up. The vehicle returned to the military camp at past 1:00 p.m., where he was again subjected
to tactical interrogation about the location of an NPA camp and his alleged NPA comrades. He suffered incessant
mauling every time he failed to answer.7

At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide on their way to an
NPA camp in Birao. Accompanying them was a man named Harry, who, according to the soldiers, was an NPA
member who had surrendered to the military. Harry pointed to Rodriguez and called him a member of the NPA. He
also heard Harry tell the soldiers that the latter knew the area well and was acquainted with a man named Elvis. The
soldiers loaded Rodriguez into a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers,
he noticed a soldier with the name tag "Matutina," who appeared to be an official because the other soldiers
addressed him as "sir."8

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told him that
Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to convince Elvis to disclose the
location of the NPA camp. They brought the two to the mountains, where both were threatened with death. When the
soldiers punched Elvis, Rodriguez told them that he would reveal the location of the NPA camp if they let Elvis go
home. They finally released Elvis around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights
in the mountains.9

On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of the NPA camp. He
was blindfolded and warned to get ready because they would beat him up again in the military camp. Upon arrival
therein, they brought him to the same room where he had first been detained, and two soldiers mauled him again.
They repeatedly punched and kicked him. In the afternoon, they let him rest and gave him an Alaxan tablet.
Thereafter, he fell asleep due to over-fatigue and extreme body pain. The soldiers, however, hit him again. After
giving him a pen and a piece of paper, they ordered him to write down his request for rice from the people. When he
refused, the soldiers maltreated him once more.10

On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had surrendered in an
encounter in Cumao, and

that the soldiers did not shoot him because he became a military asset in May. When he refused to sign the
document, he received another beating. Thus, he was compelled to sign, but did so using a different signature to
show that he was merely coerced.11

The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men appearing
therein. When he told them that he did not recognize the individuals on the photos, the soldiers instructed him to write
down the name of his school and organization, but he declined. The soldiers then wrote something on the paper,
making it appear that he was the one who had written it, and forced him to sign the document. The soldiers took
photographs of him while he was signing. Afterwards, the soldiers forced him down, held his hands, and sat on his
feet. He did not only receive another beating, but was also electrocuted. The torture lasted for about an hour.12
 60

At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the mountains, where
he saw Matutina again. They all spent the night there.13

In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they stopped, the
soldiers took his photograph and asked him to name the location of the NPA camp. Thereafter, they all returned to
the military camp. The soldiers asked him to take a bath and wear a white polo shirt handed to him. He was then
brought to the Enrile Medical Center, where Dr. Juliet Ramil (Dr. Ramil) examined him.14 When the doctor asked him
why he had bruises and contusions, he lied and told her that he sustained them when he slipped, as he noticed a
soldier observing him. Dr. Ramil’s medical certificate indicated that he suffered from four hematomas in the epigastric
area, chest and sternum.15

Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of him while he was
eating with them. They also asked him to point to a map in front of him and again took his photograph. Later, they told
him that he would finally see his mother. 16

Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper stating that he was a
surrenderee and was never beaten up. Scared and desperate to end his ordeal, he signed the paper and was warned
not to report anything to the media.17

Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave him a pair of
jeans and perfume. While he was having breakfast, the two soldiers guarding him repeatedly reminded him not to
disclose to the media his experience in the camp and to say instead that he had surrendered to the military.18

At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by several men. His
mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of the soldiers tell Wilma that he had
surrendered to the military and had long been its asset. His brother, Rodel Rodriguez (Rodel), informed him that the
men accompanying them were from the CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz
instructed him to lift up his shirt, and one of the CHR employees took photographs of his bruises.19

A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to supposedly prevent the
NPA from taking revenge on him. Respondent Calog also approached Rodriguez and Rodel and asked them to
become military assets. Rodel refused and insisted that they take Rodriguez home to Manila. Again, the soldiers
reminded them to refrain from facing the media. The soldiers also told them that the latter will be taken to the
Tuguegarao Airport and guarded until they reached home.20

Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the CHR office, where
Rodriguez was made to sign an affidavit stating that he was neither abducted nor tortured. Afraid and desperate to
return home, he was forced to sign the document. Cruz advised him not to file a case against his abductors because
they had already freed him. The CHR personnel then led him and his family to the CHR Toyota Tamaraw FX service
vehicle. He noticed that a vehicle with soldiers on board followed them.21

The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon reaching a mall in Isabela,
Rodriguez, his family, Callagan, 1st Lt. Matutina and two other soldiers transferred to an orange Toyota Revo with
plate number WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva Viscaya, 1st Lt. Matutina alighted
and called Rodriguez to a diner. A certain Alan approached Rodriguez and handed him a cellphone with a SIM card.
The latter and his family then left and resumed their journey back home.22

Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan and two soldiers
went inside the house, and took photographs and a video footage thereof. The soldiers explained that the photos and
videos would serve as evidence of the fact that Rodriguez and his family were able to arrive home safely. Despite
Rodriguez’s efforts to confront the soldiers about their acts, they still continued and only left thirty minutes later.23

On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee on Torture and
Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the latter had been a victim of
torture.24

Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed that several
suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets and on a jeepney.25
 61

On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition for the Writ of
Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of Documents and Personal
Properties dated 2 December 2009.26 The petition was filed against former President Arroyo, Gen. Ibrado, PDG.
Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De
Vera, 1st Lt. Matutina, Calog, George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the
following reliefs:

a. The issuance of the writ of amparo ordering respondents to desist from violating Rodriguez’s right to life,
liberty and security.

b. The issuance of an order to enjoin respondents from doing harm to or approaching Rodriguez, his family
and his witnesses.

c. Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5th Infantry Division,
Maguing, Gonzaga, Cagayan and another place near where Rodriguez was brought.

d. Ordering respondents to produce documents submitted to them regarding any report on Rodriguez,
including operation reports and provost marshall reports of the 5th Infantry Division, the Special Operations
Group of the Armed Forces of the Philippines (AFP), prior to, on and subsequent to 6 September
2009.1âwphi1

e. Ordering records pertinent or in any way connected to Rodriguez, which are in the custody of
respondents, to be expunged, disabused, and forever barred from being used.27

On 15 December 2009, we granted the respective writs after finding that the petition sufficiently alleged that
Rodriguez had been abducted, tortured and later released by members of the 17th Infantry Battalion of the Philippine
Army.28 We likewise ordered respondents therein to file a verified return on the writs on or before 22 December 2009
and to comment on the petition on or before 4 January 2010.29 Finally, we directed the Court of Appeals to hear the
petition on 4 January 2010 and decide on the case within 10 days after its submission for decision.30

During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit affidavits and other
pieces of evidence at the next scheduled hearing on 27 January 2010.31

On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed their Return of the
Writ, which was likewise considered as their comment on the petition.32 In their Return, respondents therein alleged
that Rodriguez had surrendered to the military on 28 May 2009 after he had been put under surveillance and
identified as "Ka Pepito" by former rebels.33 According to his military handlers, Corporal (Cpl.) Rodel

B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in Cagayan Valley.34
Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he would help the military in exchange for
his protection.35

Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and an Agent’s
Agreement/Contract, showing his willingness to return to society and become a military asset.36 Since then, he acted
as a double agent, returning to the NPA to gather information.37 However, he feared that his NPA comrades were
beginning to suspect him of being an infiltrator.38 Thus, with his knowledge and consent, the soldiers planned to stage
a sham abduction to erase any suspicion about him being a double agent.39 Hence, the abduction subject of the
instant petition was conducted.40

Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January 2010,41 alleging
that they had exercised extraordinary diligence in locating Rodriguez, facilitating his safe turnover to his family and
securing their journey back home to Manila. More specifically, they alleged that, on 16 September 2009, after Wilma
sought their assistance in ascertaining the whereabouts of her son, Cruz made phone calls to the military and law
enforcement agencies to determine his location.42 Cruz was able to speak with Lt. Col. Mina, who confirmed that
Rodriguez was in their custody.43 This information was transmitted to CHR Regional Director Atty. Jimmy P. Baliga.
He, in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry Division.44

When the CHR officers, along with Wilma and Rodel, arrived at the 17th Infantry Battalion at Masin, Alcala, Cagayan,
Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged that Rodriguez had become one of
their assets, as evidenced by the Summary on the Surrender of Noriel Rodriguez and the latter’s Contract as Agent.45
 62

The CHR officers observed his casual and cordial demeanor with the soldiers.46 In any case, Cruz asked him to raise
his shirt to see if he had been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture.
Thereafter, Rodriguez was released to his family, and they were made to sign a certification to this effect. During the
signing of the document, herein CHR officers did not witness any threat, intimidation or force employed against
Rodriguez or his family. 47

During their journey back to the home of Rodriguez, the CHR officers observed that he was very much at ease with
his military escorts, especially with 1st Lt. Matutina.48 Neither was there any force or intimidation when the soldiers
took pictures of his house, as the taking of photographs was performed with Wilma’s consent.49

During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position papers and to have
the case considered submitted for decision after the filing of these pleadings.50

On 12 April 2010, the Court of Appeals rendered its assailed Decision.51 Subsequently, on 28 April 2010, respondents
therein filed their Motion for Reconsideration.52 Before the Court of Appeals could resolve this Motion for
Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari (G.R. No. 191805), raising the
following assignment of errors:

a. The Court of Appeals erred in not granting the Interim Relief for temporary protection order.

b. The Court of Appeals erred in saying: "(H)owever, given the nature of the writ of amparo, which has the
effect of enjoining the commission by respondents of violation to petitioner’s right to life, liberty and security,
the safety of petitioner is ensured with the issuance of the writ, even in the absence of an order preventing
respondent from approaching petitioner."

c. The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had command
responsibility.53

On the other hand, respondents therein, in their Comment dated 30 July 2010, averred:

a. The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a party-respondent,
as she may not be sued in any case during her tenure of office or actual incumbency.

b. Petitioner had not presented any adequate and competent evidence, much less substantial evidence, to
establish his claim that public respondents had violated, were violating or threatening to violate his rights to
life, liberty and security, as well as his right to privacy. Hence, he was not entitled to the privilege of the writs
of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection order, production order
and temporary protection order) provided under the rule on the writ of amparo and the rule on the writ of
habeas data.54

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt. Matutina, Lt. Col. Mina, Cruz, Pasicolan
and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court
of Appeals.55 They alleged that Rodriguez –

Has not presented any adequate and competent evidence, must less substantial evidence, to establish his claim that
petitioners have violated, are violating or threatening with violation his rights to life, liberty and security, as well as his
right to privacy; hence, he is not entitled to the privilege of the writs of amparo and habeas data and their
corresponding interim reliefs (i.e., inspection order, production order and temporary protection order) provided under
the Rule on the Writ of Amparo and the Rule on the Writ of Habeas Data.56

In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed Decision and
Resolution, the following issues must be resolved:

I. Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of amparo and habeas
data have already been issued in his favor.

II. Whether former President Arroyo should be dropped as a respondent on the basis of the presidential
immunity from suit.
 63

III. Whether the doctrine of command responsibility can be used in amparo and habeas data cases.

IV. Whether the rights to life, liberty and property of Rodriguez were violated or threatened by respondents in
G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the
protection of the people’s rights to life, liberty and security.57 The rules on these writs were issued in light of the
alarming prevalence of extrajudicial killings and enforced disappearances.58 The Rule on the Writ of Amparo took
effect on 24 October 2007,59 and the Rule on the Writ of Habeas Data on 2 February 2008.60

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs
available to the petitioner.61 It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings.62 Rather, it serves both preventive and curative roles in
addressing the problem of extrajudicial killings and enforced disappearances.63 It is preventive in that it breaks the
expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent
punishment of perpetrators by inevitably leading to subsequent investigation and action.64

Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s right to control information
regarding oneself, particularly in instances where such information is being collected through unlawful means in order
to achieve unlawful ends.65 As an independent and summary remedy to protect the right to privacy – especially the
right to informational privacy66 – the proceedings for the issuance of the writ of habeas data does not entail any
finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial
evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c)
in case the database or information contains erroneous data or information, order its deletion, destruction or
rectification.67

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order. It must be
underscored that this interim relief is only available before final judgment. Section 14 of the Rule on the Writ of
Amparo clearly provides:

Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant
any of the following reliefs:

Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner
or the aggrieved party and any member of the immediate family be protected in a government agency or by an
accredited person or private institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the
officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it
shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the
court, justice or judge.

(a) Inspection Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person
in possession or control of a designated land or other property, to permit entry for the purpose of inspecting,
measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court,
justice or judge may conduct a hearing in chambers to determine the merit of the opposition.
 64

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to
be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place
and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all
parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(b) Production Order. – The court, justice, or judge, upon verified motion and after due hearing, may order any person
in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs,
objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to
the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the
movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which
case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(c) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to
the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to
Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or
private institutions capable of keeping and securing their safety. (Emphasis supplied)

We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist the court before it arrives at a
judicious determination of the amparo petition." Being interim reliefs, they can only be granted before a final
adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once
granted, necessarily entails the protection of the aggrieved party. Thus, since we grant petitioner the privilege of the
writ of amparo, there is no need to issue a temporary protection order independently of the former. The order
restricting respondents from going near Rodriguez is subsumed under the privilege of the writ.

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal liability in amparo and habeas
data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced
disappearance or extrajudicial killing. As we held in Razon v. Tagitis:69

It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility,
or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to
address the disappearance. Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of
the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against
the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that
should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance
of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is
preserved and his liberty and security are restored.70 (Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision71 found respondents in G.R. No. 191805 – with the
exception of Calog, Palacpac or Harry – to be accountable for the violations of Rodriguez’s right to life, liberty and
security committed by the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. 72 The Court of Appeals
dismissed the petition with respect to former President Arroyo on account of her presidential immunity from suit.
Rodriguez contends, though, that she should remain a respondent in this case to enable the courts to determine
whether she is responsible or accountable therefor. In this regard, it must be clarified that the Court of Appeals’
rationale for dropping her from the list of respondents no longer stands since her presidential immunity is limited only
to her incumbency.
 65

In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does not enjoy immunity from suit, even
for acts committed during the latter’s tenure. We emphasize our ruling therein that courts should look with disfavor
upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication
of a right, to wit:

We reject [Estrada’s] argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed
Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." Since the Impeachment
Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such
a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who
has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure,
the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot
due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and
the President resigns before judgment of conviction has been rendered by the impeachment court or by the body,
how does it affect the impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render
the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the
ordinary courts."

This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency and tenure" but not beyond. xxx

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed
against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no
stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the
President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to
hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of
public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same
footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v.
Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and
documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were
facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the
Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign.
President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on
the ground, among others, that the President was not subject to judicial process and that he should first be
impeached and removed from office before he could be made amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of
Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers
only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton
v. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts
is inapplicable to unofficial conduct.74 (Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the presidential immunity from suit exists only in
concurrence with the president’s incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are
merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively
traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that
given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner,
as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting
President. Petitioner's rehashed arguments including their thinly disguised new spins are based on the rejected
 66

contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of
office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de
jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of
office. He buttresses his position with the deliberations of the Constitutional Commission, viz:

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the
President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence,
at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee
members not agree to a restoration of at least the first sentence that the president shall be immune from suit during
his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is
immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that
explicit and to add other things.

Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification."

Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer
may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one
another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter
than the term for reasons within or beyond the power of the incumbent. From the deliberations, the intent of the
framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term.76
(Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot use the presidential
immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo
proceedings, she was responsible or accountable for the abduction of Rodriguez.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the doctrine of
command responsibility may be applied. As we explained in Rubrico v. Arroyo,77 command responsibility pertains to
the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic conflict."78 Although originally used for ascertaining
criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights
abuses.79 In the United States, for example, command responsibility was used in Ford v. Garcia and Romagoza v.
Garcia – civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.80 This development
in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally
extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find
application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:
 67

It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable
for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory
that the command responsibility doctrine now constitutes a principle of international law or customary international
law in accordance with the incorporation clause of the Constitution.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance
and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate
under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination
should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there be any.81 (Emphasis
supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents
are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise
remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command
responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and
enforced disappearances. In this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth
noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability
should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v.
Manalo and Razon v. Tagitis in proper context, they do not preclude the application of the doctrine of command
responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification
as a guarantee of protection of one’s rights by the government. It further stated that protection includes conducting
effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings
or enforced disappearances, or threats thereof, and/or their families, and bringing offenders to the bar of justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of
command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties
when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We
hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the
personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied
in addressing the enforced disappearance of Tagitis.

Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine to Amparo
cases. The short title of the law is the "Philippine Act on Crimes Against International Humanitarian Law, Genocide,
and Other Crimes Against Humanity." Obviously, it should, as it did, only treat of superior responsibility as a ground
for criminal responsibility for the crimes
covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html - fnt20cm Such limited treatment,
however, is merely in keeping with the statute’s purpose and not intended to rule out the application of the doctrine of
command responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the
coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command
responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make
the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats
thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen.
Avelino Razon accountable under the command responsibility doctrine, the ponencia’s hesitant application of the
doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo.82
(Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,83 likewise penned by Justice
Carpio-Morales, wherein this Court ruled:
 68

Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability.
The Court maintains its adherence to this pronouncement as far as amparo cases are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to
instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any
transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance
and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate
under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination
should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there be any.

In other words, command responsibility may be loosely applied in amparo cases in order to identify those
accountable individuals that have the power to effectively implement whatever processes an amparo court would
issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors
it considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal
liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis
supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been
established by substantial evidence to have participated in whatever way, by action or omission, in an enforced
disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who
exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who
carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil
or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain
responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be
resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must obtain:

a. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator
of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been committed; and

c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish
the perpetrators thereof.84

The president, being the commander-in-chief of all armed forces,85 necessarily possesses control over the military
that qualifies him as a superior within the purview of the command responsibility doctrine. 86

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of
knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence.87 In the
Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is
buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine
of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine
National Police and other Law Enforcement Agencies (E.O. 226).88 Under E.O. 226, a government official may be
held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or
offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his
 69

area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before,
during, or immediately after its commission.89 Knowledge of the commission of irregularities, crimes or offenses is
presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have
been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or
office personnel are involved.90

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the
armed forces, the president has the power to effectively command, control and discipline the military.91

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through substantial evidence that former
President Arroyo is responsible or accountable for his abduction. We rule in the negative.

Rodriguez anchors his argument on a general allegation that on the basis of the "Melo Commission" and the "Alston
Report," respondents in G.R. No. 191805 already had knowledge of and information on, and should have known that
a climate of enforced disappearances had been perpetrated on members of the NPA.92 Without even attaching, or at
the very least, quoting these reports, Rodriguez contends that the Melo Report points to rogue military men as the
perpetrators. While the Alston Report states that there is a policy allowing enforced disappearances and pins the
blame on the President, we do not automatically impute responsibility to former President Arroyo for each and every
count of forcible disappearance.93 Aside from Rodriguez’s general averments, there is no piece of evidence that could
establish her responsibility or accountability for his abduction. Neither was there even a clear attempt to show that
she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate,
punish or prevent it.

Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Court’s ruling in Razon,94 to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider
any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the
evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.95 (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the same being
supported by substantial evidence. A careful examination of the records of this case reveals that the totality of the
evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in G.R.
No. 191805 for violating his right to life, liberty and security.

a. The totality of evidence proved by substantial evidence the responsibility or accountability of respondents for the
violation of or threat to Rodriguez’s right to life, liberty and security.

After a careful examination of the records of these cases, we are convinced that the Court of Appeals correctly found
sufficient evidence proving that the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the military abducted
Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009.

Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward account of his
horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his
suspected membership in the NPA.96 His narration of his suffering included an exhaustive description of his physical
surroundings, personal circumstances and perceived observations. He likewise positively identified respondents 1st
Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture,97 and respondents Cruz,
Pasicolan and Callagan as the CHR representatives who appeared during his release.98

More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in his Sinumpaang Salaysay dated
16 September 2009,99 wherein he recounted in detail the circumstances surrounding the victim’s capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate the physical
maltreatment Rodriguez suffered in the hands of the soldiers of the 17th Infantry Battalion, 5th Infantry Division.
 70

According to the Certification dated 12 October 2009 executed by Dr. Ramil,100 she examined Rodriguez in the
Alfonso Ponce Enrile Memorial District Hospital on 16 September 2009 and arrived at the following findings:
FACE
- 10cm healed scar face right side
- 2cm healed scar right eyebrow (lateral area)
- 2cm healed scar right eye brow (median area)
- 4cm x 2cm hematoma anterior chest at the sternal area right side
- 3cm x 2cm hematoma sternal area left side
- 6cm x 1cm hematoma from epigastric area to ant. chest left side
- 6cm x 1cm hematoma from epigastric area to ant. chest right side
- Multiple healed rashes (brownish discoloration) both forearm
- Multiple healed rashes (brownish discoloration)
- both leg arm
- hip area/lumbar area101

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results of which
confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas thus issued a Medical
Report dated 23 September 2009,102 explicitly stating that Rodriguez had been tortured during his detention by the
military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and ill-treatment
done to him. The multiple circular brown to dark brown spots found on both legs and arms were due to the insect
bites that he sustained when he was forced to join twice in the military operations. The abrasions could also be due to
the conditions related during military operations. The multiple pin-point blood spots found on his left ear is a result of
an unknown object placed inside his left ear. The areas of tenderness he felt during the physical examination were
due to the overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom
experience (sic) by the subject as a result of the psychological trauma he encountered during his detention.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the torture and ill-treatment
done to him while in detention for about 11 days. The physical injuries sustained by the subject, of which the age is
compatible with the alleged date of infliction (sic).103 (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding that the
injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the soldiers of the 17th
Infantry Battalion, 5th Infantry Division of the Philippine Army. Further, the kind of injuries he sustained showed that
he could not have sustained them from merely falling, thus making respondents’ claim highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of Rodriguez in
his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their argument that he was
neither abducted nor detained. Rather, they claimed that he was a double agent, whose relationship with the military
was at all times congenial. This contention cannot be sustained, as it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have unhesitatingly
assured his family on 17 September 2009 that he was among friends. Instead, he vigorously pleaded with them to get
him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009104 Wilma executed, she
made the following averments:

18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod
at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar na
iyon;

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa kampo
ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;
 71

24. Na hindi ako pumayag na maiwan ang aking anak;

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming buong
pamilya, lalo na kay Noriel; xxx105

Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December
2009:106

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang ipinayat at
nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at
masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako dito, papatayin nila ako."

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid sa
kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx107

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory, contention of
respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion from his activities as a
member of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to become a double-
agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl.
Navarro, that petitioner could no longer stand the hardships he experienced in the wilderness, and that he wanted to
become an ordinary citizen again because of the empty promises of the CPP-NPA. However, in the same Return,
respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-
NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in
the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an
undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to locate the hideout
of his alleged NPA comrades.108 (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture of Rodriguez,
respondents, specifically 1st Lt. Matutina, had violated and threatened the former’s right to security when they made
a visual recording of his house, as well as the photos of his relatives, to wit:

In the videos taken by the soldiers – one of whom was respondent Matutina – in the house of petitioner on
September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioner’s relatives hung on the
wall of the house, as well as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking
the said videos, did not merely intend to make proofs of the safe arrival of petitioner and his family in their home. 1Lt.
Matutina also desired to instill fear in the minds of petitioner and his family by showing them that the sanctity of their
home, from then on, will not be free from the watchful eyes of the military, permanently captured through the medium
of a seemingly innocuous cellhpone video camera. The Court cannot – and will not – condone such act, as it intrudes
into the very core of petitioner’s right to security guaranteed by the fundamental law.109 (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory defenses presented
by respondents in G.R. No. 191805, give credence to his claim that he had been abducted, detained and tortured by
soldiers belonging to the 17th Infantry Battalion, 5th Infantry Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no substantial
evidence to show that they violated, or threatened with violation, Rodriguez’s right to life, liberty and security. Despite
the dearth of evidence to show the CHR officers’ responsibility or accountability, this Court nonetheless emphasizes
its criticism as regards their capacity to recognize torture or any similar form of abuse. The CHR, being
constitutionally mandated to protect human rights and investigate violations thereof,110 should ensure that its officers
are well-equipped to respond effectively to and address human rights violations. The actuations of respondents
unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his
ordeal.
 72

b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to Rodriguez’s rights to life,
liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security
may be caused by either an act or an omission of a public official.111 Moreover, in the context of amparo proceedings,
responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance.112
Accountability, on the other hand, may attach to respondents who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced disappearance.113

In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo114 that the right to security of a
person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of
the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the
1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and
psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of
the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights
stressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting
the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to
liberty. The ECHR interpreted the "right to security of person" under Article 5(1) of the European Convention of
Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had
been arrested by state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's
right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules
of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable
claim that a person has been taken into custody and has not been seen since.115 (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the
violation of Rodriguez’s right to life, liberty and security on account of their abject failure to conduct a fair and effective
official investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen.
Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no
efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied on the
reports and narration of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, for while
they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is
superficial and one-sided. The records disclose that the military, in investigating the incident complained of,
depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the
Commanding Officer of the 501st Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is
merely based on the narration of the military. No efforts were undertaken to solicit petitioner’s version of the subject
incident and no witnesses were questioned regarding the alleged abduction of petitioner.
 73

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law," specifies the PNP as the governmental office with the mandate "to investigate
and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution."
In this case, PDG Verzosa failed to order the police to conduct the necessary investigation to unmask the mystery
surrounding petitioner’s abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely
stating that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on the part of
PDG Verzosa to effectively and aggressively investigate the violations of petitioner’s right to life, liberty and security
by members of the 17th Infantry Battalion, 17th Infantry Division, Philippine Army.116 (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to
security, for which respondents in G.R. No. 191805 must be held responsible or accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or accountability on the
part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had
already retired when the abduction and torture of Rodriguez was perpetrated, while P/SSupt. Santos had already
been reassigned and transferred to the National Capital Regional Police Office six months before the subject incident
occurred. Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac.

From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence that
respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1st Lt. Matutina, and
Lt. Col. Mina were responsible and accountable for the violation of Rodriguez’s rights to life, liberty and security on
the basis of (a) his abduction, detention and torture from 6 September to 17 September 2009, and (b) the lack of any
fair and effective official investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data
must be granted in his favor. As a result, there is no longer any need to issue a temporary protection order, as the
privilege of these writs already has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to
life, liberty and security.

It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list of
respondents in G.R. No. 191805, and (b) allowing the application of the command responsibility doctrine to amparo
and habeas data proceedings, Rodriguez failed to prove through substantial evidence that former President Arroyo
was responsible or accountable for the violation of his rights to life, liberty and property. He likewise failed to prove
through substantial evidence the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan
and Callagan.

The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt. Ameto G.
Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent
Callagan for lack of merit.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the
appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may
have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen.
Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman
and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of
this Decision.

In the event that herein respondents no longer occupy their respective posts, the directives mandated in this Decision
and in the Court of Appeals are enforceable against the incumbent officials holding the relevant positions. Failure to
comply with the foregoing shall constitute contempt of court.

SALUDAY VS PEOPLE

Before the Court is a Petition for Review on Certiorari assailing the Decision dated 26 June 2014 1 and the Resolution
dated, 15 October 20142 of the Court of Appeals in CA-G.R. CR No. 01099. The Court of Appeals affirmed with
modification the Sentence dated 15 September 2011 3 rendered by the Regional Trial Court, Branch 11, Davao City
in Criminal CaseNo. 65, 734-09, finding petitioner Marcelo G. Saluday (petitioner) guilty beyond reasonable doubt of
illegal possession of high-powered firearm, ammunition, and explosive under Presidential Decree No. 1866,4 as
amended (PD 1866).

The Antecedent Facts

 74

On 5 May 2009, Bus No. 66 of Davao Metro Shuttle was flagged down by Task Force Davao of the Philippine Army
at a checkpoint near the Tefasco Wharf in Ilang, Davao City. SCAA Junbert M. Buco (Buco), a member of the Task
Force, requested all male passengers to disembark from the vehicle while allowing the female passengers to remain
inside. He then boarded the bus to check the presence and intercept the entry of any contraband, illegal firearms or
explosives, and suspicious individuals.

SCAA Buco checked all the baggage and personal effects of the passengers, but a small, gray-black pack bag on the
seat at the rear of the bus caught his attention. He lifted the bag and found it too heavy for its small size. SCAA Buco
then looked at the male passengers lined outside and noticed that a man in a white shirt (later identified as petitioner)
kept peeping through the window towards the direction of the bag. Afterwards, SCAA Buco asked who the owner of
the bag was, to which the bus conductor answered that petitioner and his brother were the ones seated at the back.
SCAA Buco then requested petitioner to board the bus and open the bag. Petitioner obliged and the bag revealed the
following contents: (1) an improvised .30 caliber carbine bearing serial number 64702; (2) one magazine with three
live ammunitions; (3) one cacao-type hand grenade; and (4) a ten-inch hunting knife. SCAA Buco then asked
petitioner to produce proof of his authority to carry firearms and explosives. Unable to show any, petitioner was
immediately arrested and informed of his rights by SCAA Buco.

Petitioner was then brought for inquest before the Office of the City Prosecutor for Davao City. In its Resolution dated
7 May 2009,5 the latter found probable cause to charge him with illegal possession of high-powered firearm,
ammunition, and explosive under PD l 866. The Information dated 8 May 2009 thus reads:

That on or about May 5, 2009, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, willfully, unlawfully and knowingly, with intent to possess, had in his possession and
under his custody an improvised high powered firearm caliber .30 carbine bearing Serial No. 64702 (made in Spain)
with one (1) magazine loaded with three (3) live ammunitions and one (1) "'cacao" type hand grenade explosive,
without first securing the necessary license to possess the same.

CONTRARY TO LAW.6

When arraigned, petitioner pleaded not guilty.

During the trial, the prosecution presented two witnesses namely, NUP Daniel Tabura (Tabura), a representative of
the Firearms and Explosives Division of the Philippine National Police, and SCAA Buco. NUP Tabura identified the
Certification dated 5 November 20097 attesting that petitioner was "not a licensed/registered holder of any kind and
caliber per verification from records." Meanwhile, SCAA Buco identified petitioner and the items seized from the bag,
and testified on the details of the routine inspection leading to the immediate arrest of petitioner. On cross-
examination, SCAA Buco further elaborated on the search conducted:
Atty. Mamburam
Q And that check point, which was conducted along llang [R)oad,
Davao City, was by virtue of a memorandum?
A Yes, Your Honor.
xxxx
Q Now, you said that at around 5:00 of said date, you were able to intercept a Metro Shuttle passenger bus and you
requested all passengers to alight?
A Yes.
Q passengers were left inside?
A Yes, Your Honor.
Q And, after all passengers were able to alight, you checked all cargoes of the passengers in the bus?
A Yes.
xxxx
Q And, you testified that one of those things inside the bus was a black gray colored pack bag which was placed at
the back portion of the bus?
A Yes.
Q You said that the hag was heavy?
A Yes.
Q And you picked up or carried also the other belongings or cargo[e]s inside the bus and that was the only thing or
item inside the bus which was heavy. Is that correct?
A There were many bags and they were heavy. When l asked who is the owner of the bag because it was heavy but
the bag was small. when I asked, he said the content of the bag was a cellphone. But 1 noticed that it was heavy.
xxxx
Q And you said that somebody admitted ownership of the bag. Is that correct?
A Yes.
 75

Q Who admitted ownership of the bag?

A (WITNESS POINTS TO THE ACCUSED)
Q Now, you said that while you are looking at the bag, you noticed that one male passenger you pointed as the
accused kept looking at you'?
A Yes.
 
Q And, aside from the accused, all the other male passengers were not looking at you?
A The other passengers were on the ground but he was in front of [the] window looking towards his bag.
xxxx
Q And the accused admitted that he owned the bag, you requested him to open the bag'?
A Not yet. I let him board the bus and asked him if he can open it.
Q And, when he opened it?
A I saw the handle of the firearm. 8 (Emphasis supplied)
On the other hand, the defense presented petitioner as sole witness. On direct examination, petitioner denied
ownership of the bag. However, he also admitted to answering SCAA Buco when asked about its contents and
allowing SCAA Buco to open it after the latter sought for his permission:
ATTY. MAMBURAM
Q x xx After the conductor of the bus told the member of the task force that you and your brother were seated at the
back of the bus. can you please tell us what happened next'?
A The member of the task force asked who is the owner of the bag and what were the contents of the bag.
Q To whom did the member of the task force address that question?
A To me because I was pointed to by the conductor.
Q And what was your reply to the question of the member of the task force?
A I told him it was only a cellphone.
Q By the way, Mr. Witness, who owned that bag?
A My elder brother.
Q And why did you make a reply to the question of the member of the task force when, in fact, you were not the
owner of the bag?
A Because I was pointed to by the conductor that it was me and my brother who were seated at the back.
xxxx
Q Now, after you told the member of the task force that probably the content of the bag was cellphone, what
happened next?
A He asked if he can open it.
Q And what was your reply?
A I told him yes, just open it.
xx xx
Q Now, you said that the owner of the bag and the one who carried that bag was your brother, what is the name of
your brother?
A Roger Saluday.
Q Where is your brother Roger now?
A Roger is already dead. He died in September 2009.9 (Emphasis supplied)
On cross-examination, petitioner clarified that only he was pointed at by the conductor when the latter was asked who
owned the bag. Petitioner also admitted that he never disclosed he was with his brother when he boarded the bus:
PROS. VELASCO
Q You said that you panicked because they pulled you but as a way of saving yourself considering you don't own the
bag> did you not volunteer to inform them that [the] bag was owned by your brother?
A I told them I have a companion but I did not tell them that it was my brother because I was also afraid of my
brother.
Q So, in short, Mr. Witness, you did not actually inform them that you had a brother at that time when you
were boarding that bus, correct?
A No, sir, I did not.
xxxx
Q So, you were answering all questions by saying it is not your bag but you confirm now that it was the conductor of
that bus who pointed you as the owner of the bag, correct?
A Yes, sir, the conductor pointed at me as the one who [sic] seated at the back. 10 (Emphasis supplied)
The defense subsequently rested its case and the prosecution waived the right to present rebuttal evidence. Upon
order from the trial court, the parties submitted their respective memoranda.

The Decision of the Trial Court

Finding the denials of petitioner as self-serving and weak, the trial court declared him to be in actual or constructive
possession of firearm and explosive without authority or license. Consequently, in the dispositive portion of the
Sentence dated 15 September 2011, petitioner was adjudged guilty beyond reasonable doubt of illegal possession of
firearm, ammunition, and explosive under PD 1866:
 76

WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding Marcelo Gigbalen Saluday GUILTY
of illegal possession of high powered firearm, ammunition and explosive. For the offense of illegal possession of high
powered firearm and ammunition, he is hereby sentenced to suffer an imprisonment of prision mayor in its minimum
period. He is likewise ordered to pay a fine of ₱30,000.00. For the offense of illegal possession of explosive, he is
hereby sentenced to suffer an imprisonment of prision mayor in its maximum period to reclusion temporal. He is
likewise ordered to pay a fine of ₱50,000.00.

The Decision of the Court of Appeals

On appeal, petitioner challenged his conviction raising as grounds the alleged misappreciation of evidence by the trial
court and the supposed illegality of the search. 13 On the other hand, the Office of the Solicitor General (OSG) argued
that the warrantless search was valid being a consented search, and that the factual findings of the trial court can no
longer be disturbed. 14

In its Decision dated 26 June 2014, the Court of Appeals sustained the conviction of petitioner and affirmed the ruling
of the trial court with modification:

WHEREFORE. the instant appeal is DISMISSED. The Sentence dated September 15, 2011 of the Regional Trial
Court, 11th Judicial Region, Branch 11, Davao City, in Criminal Case No. 65, 734-09, finding Marcelo Gigbalen
Saluday guilty beyond reasonable doubt of illegal possession of high powered firearm, ammunition and explosive is
AFFIRMED with the MODIFICATION that:

(1) for the offense of illegal possession of high-powered firearm and ammunition, he is imposed an indeterminate
sentence of four (4) years, eight (8) months and twenty-one (21) days of prision correccional maximum, as the
minimum term, to seven (7) years and one (1) day of prision mayor minimum, as the maximum term, in addition to the
fine of Thirty thousand pesos (₱30,000.00); and

(2) for the offense of illegal possession of explosive, he is sentenced to suffer the penalty of reclusion perpetua
without eligibility for parole.

Petitioner then filed a Motion for Reconsideration,16 to which the OSG filed its Comment. 17 In its Resolution dated 15
October 2014, 18 the Court of Appeals denied petitioner's Motion for Reconsideration for being pro forma. Hence,
petitioner filed this Petition for Review on Certiorari under Rule 45 of the Rules of Court.

The Issue

Petitioner assails the appreciation of evidence by the trial court and the Court of Appeals as to warrant his conviction
for the offenses charged.

The Ruling of this Court

We affirm.

Only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court.19 As a
result, the Court, on appeal, is not duty-bound to weigh and sift through the evidence presented during trial. 20
Further, factual findings of the trial court, when affirmed by the Court of Appeals, are accorded great respect, even
finality. 21

Here, petitioner assails his conviction for illegal possession of high-powered firearm and ammunition under PD 1866,
and illegal possession of explosive under the same law. The elements of both offenses are as follows: (1) existence
of the firearm, ammunition or explosive; (2) ownership or possession of the firearm, ammunition or explosive; and (3)
lack of license to own or possess.22 As regards the second and third elements, the Corn1: of Appeals concurred with
the trial court that petitioner was in actual or constructive possession of a high-powered firearm, ammunition, and
explosive without the requisite authority. The Decision dated 26 June 2014 reads in pertinent part:

In the present case, the prosecution proved the negative fact that appellant has no license or permit to own or
possess the firearm, ammunition and explosive by presenting NUP Daniel Tab[u]ra (Tab[u]ra), a representative of the
Firearms and Explosives Division (FED) of the PNP. He identified the Certification issued by the Chief. Records
 77

Section. FED of the PNP, stating that appellant "is not a licensed/registered holder of any kind and caliber per
verification from records of this office."

Appellant, however, questions the competence of Tab[u]ra to testify on the veracity or truthfulness of the
Ce1tification. He claims that the officer who issued it should have been the one presented so he would not be denied
the right to confront and cross-examine the witnesses against him.

There is no merit to petitioner's claim. The following is pertinent:

The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the
Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm
would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms. The
prosecution more than complied when it presented both.

Also, appellant denies having physical or constructive possession of the firearms, ammunition and explosive.
However, his denial flies in the face of the following testimonies which he himself made:

Appellant gave information, albeit misleading, on the contents of the bag. He even allowed the police officer to open
it. Based on his actuations, there could be no doubt that he owned the bag containing the firearm, ammunition and
explosive.

Shifting the blame to his dead brother is very easy for appellant to fabricate. Besides, the allegation that his brother
owned the bag is uncorroborated and self-serving. 23

As above-quoted, the presence of the second and third elements of illegal possession of firearm, ammunition, and
explosive raises questions of fact. Considering further that the Court of Appeals merely echoed the factual findings of
the trial court, the Court finds no reason to disturb them.

As regards the first element, petitioner corroborates the testimony of SCAA Buco on four important points: one, that
petitioner was a passenger of the bus flagged down on 5 May 2009 at a military checkpoint in Ilang, Davao City; two,
that SCAA Buco boarded and searched the bus; three, that the bus conductor pointed at petitioner as the owner of a
small, gray-black pack bag on the back seat of the bus; and four, that the same bag contained a .30-caliber firearm
with one magazine loaded who three live ammunitions, and a hand grenade. Notably, petitioner does not challenge
the chain of custody over the seized items. Rather, he merely raises a pure question of law and argues that they are
inadmissible on the ground that the search conducted by Task Force Davao was illegal.

The Court disagrees.

Section 2, Article Ill of the Constitution, which was patterned after the Fourth Amendment to the United States (U.S.)
Constitution,24 reads:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. (Emphasis supplied)

Indeed, the constitutional guarantee is not a blanket prohibition. Rather, it operates against "unreasonable" searches
and seizures only. 25

Conversely, when a search is "reasonable," Section 2, Article HI of the Constitution does not apply. As to what
qualifies as a reasonable search, the pronouncements of the U.S. Supreme Court, which are doctrinal in this
jurisdiction,26 may shed light on the matter.

In the seminal case of Katz v. United States, 27 the U.S. Supreme Court held that the electronic surveillance of a
phone conversation without a warrant violated the Fourth Amendment. According to the U.S. Supreme Court, what
the Fourth Amendment protects are people, not places such that what a person knowingly exposes to the public,
even in his or her own home or office, is not a subject of Fourth Amendment protection in much the same way that
 78

what he or she seeks to preserve as private, even in an area accessible to the public, may be constitutionally
protected, thus:

Because of the misleading way the issues have been formulated, the parties have attached great significance to the
characterization of the telephone booth from which the petitioner placed his calls. The petitioner has strenuously
argued that the booth was a "constitutionally protected area." The Government has maintained with equal vigor that it
was not. But this effo1i to decide whether or not a given "area,'' viewed in the abstract, is "constitutionally protected"
deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. See Lewis v. United States, 385 U.S. 206, 210; United States v. Lee, 274 U.S. 559, 563. But
what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. See
Rios v. United States, 364 U.S. 253; £:y; parte Jackson, 96 U.S. 727, 733.28 (Emphasis supplied)

Further, Justice John Harlan laid down in his concurring opinion the two-part test that would trigger the application of
the Fourth Amendment. First, a person exhibited an actual (subjective) expectation of privacy.29 Second, the
expectation is one that society is prepared to recognize as reasonable (objective).30

The prohibition of unreasonable search and seizure ultimately stems from a person's right to privacy. Hence, only
when the State intrudes into a person's expectation of privacy, which society regards as reasonable, is the Fourth
Amendment triggered. Conversely, where a person does not have an expectation of privacy or one's expectation of
privacy is not reasonable to society, the alleged State intrusion is not a "search" within the protection of the Fourth
Amendment.

A survey of Philippine case law would reveal the same jurisprudential reasoning. To illustrate, in People v. Johnson,31
the Court declared airport searches as outside the protection of the search and seizure clause due to the lack of an
expectation of privacy that society will regard as reasonable:

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the
public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to
recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over
airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board
an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely
subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects. physical searches
are conducted to determine what the objects are. There is little question that such searches are reasonable, given
their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs. and
notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found,
such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to routine airport procedures.32 (Citations omitted)

Similarly, in Dela Cruz v. People,33 the Court described seaport searches as reasonable searches on the ground that
the safety of the traveling public overrides a person's right to privacy:

Routine baggage inspections conducted by port authorities, although done without search warrants, are not
unreasonable searches per se. Constitutional provisions protecting privacy should not be so literally understood so as
to deny reasonable safeguards to ensure the safety of the traveling public.

Thus, with port security personnel's functions having the color of state-related functions and deemed agents of
government, Marti is inapplicable in the present case. Nevertheless, searches pursuant to port security measures are
not unreasonable per se. The security measures of x-ray scanning and inspection in domestic ports are akin to
routine security procedures in airports.

Port authorities were acting within their duties and functions when [they] used x-ray scanning machines for inspection
of passengers' bags. When the results of the x-ray scan revealed the existence of firearms in the bag, the port
authorities had probable cause to conduct u search of petitioner's bag. Notably, petitioner did not contest the results
of the x-ray scan.34

In People v. Breis,35 the Court also justified a bus search owing to the reduced expectation of privacy of the riding
public:
 79

Unlike the officer in Chan Fook, IO1 Mangili did not exceed his authority in the performance of his duty. Prior to Breis'
resistance, IO1 Mangili laid nary a finger on Breis or Yurnol. Neither did his presence in the bus constitute an excess
of authority. The bus is public transportation, and is open to the public. The expectation of privacy in relation to the
constitutional right against unreasonable searches in a public bus is not the same as that in a person's dwelling. In
fact, at that point in time, only the bus was being searched, not Yumol, Breis, or their belongings, and the search of
moving vehicles has been upheld.36

Indeed, the reasonableness of a person's expectation of privacy must be determined on a case-to-case basis since it
depends on the factual circumstances surrounding the case.37 Other factors such as customs, physical surroundings
and practices of a particular activity may diminish this expectation.38 In Fortune Express, Inc. v. Court of Appeals,39 a
common carrier was held civilly liable for the death of a passenger due to the hostile acts of armed men who boarded
and subsequently seized the bus. The Could held that "simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages, preferably with non-intrusive gadgets such
as metal detectors, before allowing them on board could have been employed without violating the passenger's
constitutional rights."40 In Costabella Corp. v. Court of Appeals,41 a compulsory right of way was found improper for
the failure of the owners of the dominant estate to allege that the passageway they sought to be re-opened was at a
point least prejudicial to the owner of the servient estate. The Court thus explained, ''[c]onsidering that the petitioner
operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised."42
Similarly, shopping malls install metal detectors and body scanners, and require bag inspection as a requisite for
entry. Needless to say, any security lapse on the part of the mall owner can compromise public safety.

Concededly, a bus, a hotel and beach resort, and a shopping mall are all private property whose owners have every
right to exclude anyone from entering. At the same time, however, because these private premises are accessible to
the public, the State, much like the owner, can impose non-intrusive security measures and filter those going in. The
only difference in the imposition of security measures by an owner and the State is, the former emanates from the
attributes of ownership under Article 429 of the Civil Code, while the latter stems from the exercise of police power for
the promotion of public safety. Necessad1y, a person's expectation of privacy is diminished whenever he or she
enters private premises that arc accessible to the public.

In view of the foregoing, the bus inspection conducted by Task Force Davao at a military checkpoint constitutes a
reasonable search. Bus No. 66 of Davao Metro Shuttle was a vehicle of public transportation where passengers have
a reduced expectation of privacy. Further, SCAA Buco merely lifted petitioner's bag. This visual and minimally
intrusive inspection was even less than the standard x-ray and physical inspections done at the airport and seaport
terminals where passengers may further be required to open their bags and luggages. Considering the
reasonableness of the bus search, Section 2, Article III of the Constitution finds no application, thereby precluding the
necessity for a warrant.

As regards the warrantless inspection of petitioner's bag, the OSG argues that petitioner consented to the search)
thereby making the seized items admissible in evidence.43 Petitioner contends otherwise and insists that his failure to
object cannot be construed as an implied waiver.

Petitioner is wrong.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right, which may be
waived.44 However, to be valid, the consent must be voluntary such that it is unequivocal, specific, and intelligently
given, uncontaminated by any duress or coercion.45 Relevant to this determination of voluntariness are the following
characteristics of the person giving consent and the environment in which consent is given: (a) the age of the
consenting party; (b) whether he or she was in a public or secluded location; (c) whether he or she objected to the
search or passively looked on;46 (d) his or her education and intelligence; (e) the presence of coercive police
procedures; (f) the belief that no incriminating evidence will be found;47 (g) the nature of the police questioning; (h) the
environment in which the questioning took place; and (i) the possibly vulnerable subjective state of the person
consenting.48

In Asuncion v. Court of Appeals,49the apprehending officers sought the permission of petitioner to search the car, to
which the latter agreed. According to the Court, petitioner himself freely gave his consent to the search. In People v.
Montilla, 50 the Court found the accused to have spontaneously performed affirmative acts of volition by opening the
bag without being forced or intimidated to do so, which acts amounted to a clear waiver of his right. In People v.
Omaweng,51 the police officers asked the accused if they could see the contents of his bag, to which the accused
said "you can see the contents but those are only clothings." The policemen then asked if they could open and see it,
and the accused answered "you can see it." The Court held there was a valid consented search.
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Similarly in this case, petitioner consented to the baggage inspection done by SCAA Buco. When SCAA Buco asked
if he could open petitioner's bag, petitioner answered ''yes, just open if' based on petitioner's own testimony. This is
clear consent by petitioner to the search of the contents of his bag. In its Decision dated 26 June 2014, the Court of
Appeals aptly held:

A waiver was found in People v. Omaweng. There, the police officers asked the accused if they could see the
contents of his bag and he answered "you can see the contents but those are only clothings.'' When asked if they
could open and see it, he said "you can see it." In the present case, accused-appellant told the member of the task
force that "it was only a cellphone" when asked who owns the bag and what are its contents. When asked by the
member of the task force if he could open it, accused-appellant told him "yes, just open it." Hence, as in Omaweng,
there was a waiver of accused-appellants right against warrantless search.52

To emphasize, a reasonable search, on the one hand, and a warrantless search, on the other, are mutually exclusive.
While both State intrusions are valid even without a warrant, the underlying reasons for the absence of a warrant are
different. A reasonable search arises from a reduced expectation of privacy, for which reason Section 2, Article III of
the Constitution finds no application. Examples include searches done at airports, seaports, bus terminals, malls, and
similar public ·places. In contrast, a warrantless search is presumably an "unreasonable search," but for reasons of
practicality, a search warrant can be dispensed with. Examples include search incidental to a lawful arrest, search of
evidence in plain view, consented search, and extensive search of a private moving vehicle.

Further, in the conduct of bus searches, the Court Jays down the following guidelines.1âwphi1 Prior to entry,
passengers and their bags and luggages can be subjected to a routine inspection akin to airport and seaport security
protocol. In this regard, metal detectors and x-ray scanning machines can be installed at bus terminals. Passengers
can also be frisked. In lieu of electronic scanners, passengers can be required instead to open their bags and
luggages for inspection, which inspection must be made in the passenger's presence. Should the passenger object,
he or she can validly be refused entry into the terminal.

While in transit, a bus can still be searched by government agents or the security personnel of the bus owner in the
following three instances. First, upon receipt of information that a passenger carries contraband or illegal articles, the
bus where the passenger is aboard can be stopped en route to allow for an inspection of the person and his or her
effects. This is no different from an airplane that is forced to land upon receipt of information about the contraband or
illegal articles carried by a passenger onboard. Second, whenever a bus picks passengers en route, the prospective
passenger can be frisked and his or her bag or luggage be subjected to the same routine inspection by government
agents or private security personnel as though the person boarded the bus at the terminal. This is because unlike an
airplane, a bus is able to stop and pick passengers along the way, making it possible for these passengers to evade
the routine search at the bus terminal. Third, a bus can be flagged down at designated military or police checkpoints
where State agents can board the vehicle for a routine inspection of the passengers and their bags or luggages.

In both situations, the inspection of passengers and their effects prior to entry at the bus terminal and the search of
the bus while in transit must also satisfy the following conditions to qualify as a valid reasonable search. First, as to
the manner of the search, it must be the least intrusive and must uphold the dignity of the person or persons being
searched, minimizing, if not altogether eradicating, any cause for public embarrassment, humiliation or ridicule.
Second, neither can the search result from any discriminatory motive such as insidious profiling, stereotyping and
other similar motives. In all instances, the fundamental rights of vulnerable identities, persons with disabilities,
children and other similar groups should be protected. Third, as to the purpose of the search, it must be confined to
ensuring public safety. Fourth, as to the evidence seized from the reasonable search, courts must be convinced that
precautionary measures were in place to ensure that no evidence was planted against the accused.

The search of persons in a public place is valid because the safety of others may be put at risk. Given the present
circumstances, the Court takes judicial notice that public transport buses and their terminals, just like passenger ships
and seaports, are in that category.

Aside from public transport buses, any moving vehicle that similarly accepts passengers at the terminal and along its
route is likewise covered by these guidelines. Hence, whenever compliant with these guidelines, a routine inspection
at the terminal or of the vehicle itself while in transit constitutes a reasonable search. Otherwise, the intrusion
becomes unreasonable, thereby triggering the constitutional guarantee under Section 2, Article III of the Constitution.

To emphasize, the guidelines do not apply to privately-owned cars. Neither are they applicable to moving vehicles
dedicated for private or personal use, as in the case of taxis, which are hired by only one or a group of passengers
such that the vehicle can no longer be flagged down by any other person unti1 the passengers on board alight from
the vehicle.
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JIMENEZ VS.CABANGBANG

This is an ordinary civil action, originally instituted in the Court of First Instance of Rizal, for the recovery, by plaintiffs
Nicanor T. Jimenez, Carlos J. Albert and Jose L. Lukban, of several sums of money, by way of damages for the
publication of an allegedly libelous letter of defendant Bartolome Cabangbang. Upon being summoned, the latter
moved to dismiss the complaint upon the ground that the letter in question is not libelous, and that, even if were, said
letter is a privileged communication. This motion having been granted by the lower court, plaintiffs interposed the
present appeal from the corresponding order of dismissal.

The issues before us are: (1) whether the publication in question is a privileged communication; and, if not, (2)
whether it is libelous or not.

The first issue stems from the fact that, at the time of said publication, defendant was a member of the House of
Representatives and Chairman of its Committee on National Defense, and that pursuant to the Constitution:

The Senators and Members of the House of Representatives shall in all cases except treason, felony, and
breach of the peace, be privileged from arrest during their attendance at the sessions of the Congress, and
in going to and returning from the same; and for any speech or debate therein, they shall not be questioned
in any other place. (Article VI, Section 15.)

The determination of the first issue depends on whether or not the aforementioned publication falls within the purview
of the phrase "speech or debate therein" — that is to say, in Congress — used in this provision.

Said expression refers to utterances made by Congressmen in the performance of their official functions, such as
speeches delivered, statements made, or votes cast in the halls of Congress, while the same is in session, as well as
bills introduced in Congress, whether the same is in session or not, and other acts performed by Congressmen, either
in Congress or outside the premises housing its offices, in the official discharge of their duties as members of
Congress and of Congressional Committees duly authorized to perform its functions as such, at the time of the
performance of the acts in question.1

The publication involved in this case does not belong to this category. According to the complaint herein, it was an
open letter to the President of the Philippines, dated November 14, 1958, when Congress presumably was not in
session, and defendant caused said letter to be published in several newspapers of general circulation in the
Philippines, on or about said date. It is obvious that, in thus causing the communication to be so published, he was
not performing his official duty, either as a member of Congress or as officer or any Committee thereof. Hence,
contrary to the finding made by His Honor, the trial Judge, said communication is not absolutely privileged.

Was it libelous, insofar as the plaintiffs herein are concerned? Addressed to the President, the communication began
with the following paragraph:

In the light of the recent developments which however unfortunate had nevertheless involved the Armed
Forces of the Philippines and the unfair attacks against the duly elected members of Congress of engaging
in intriguing and rumor-mongering, allow me, Your Excellency, to address this open letter to focus public
attention to certain vital information which, under the present circumstances, I feel it my solemn duty to our
people to expose.1äwphï1.ñët

It has come to my attention that there have been allegedly three operational plans under serious study by
some ambitious AFP officers, with the aid of some civilian political strategists.

Then, it describes the "allegedly three (3) operational plans" referred to in the second paragraph. The first plan is said
to be "an insidious plan or a massive political build-up" of then Secretary of National Defense, Jesus Vargas, by
propagandizing and glamorizing him in such a way as to "be prepared to become a candidate for President in 1961".
To this end, the "planners" are said to "have adopted the sales-talk that Secretary Vargas is 'Communists' Public
Enemy No. 1 in the Philippines." Moreover, the P4,000,000.00 "intelligence and psychological warfare funds" of the
Department of National Defense, and the "Peace and Amelioration Fund" — the letter says — are "available to
adequately finance a political campaign". It further adds:

It is reported that the "Planners" have under their control the following: (1) Col. Nicanor Jimenez of NICA, (2)
Lt. Col. Jose Lukban of NBI, (3) Capt. Carlos Albert (PN) of G-2 AFP, (4) Col. Fidel Llamas of MIS (5) Lt.
Col. Jose Regala of the Psychological Warfare Office, DND, and (6) Major Jose Reyna of the Public
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information Office, DND. To insure this control, the "Planners" purportedly sent Lt. Col. Job Mayo, Chief of
MIS to Europe to study and while Mayo was in Europe, he was relieved by Col. Fidel Llamas. They also sent
Lt. Col. Deogracias Caballero, Chief of Psychological Warfare Office, DND, to USA to study and while
Caballero was in USA, he was relieved by Lt. Col. Jose Regala. The "Planners" wanted to relieve Lt. Col.
Ramon Galvezon, Chief of CIS (PC) but failed. Hence, Galvezon is considered a missing link in the
intelligence network. It is, of course, possible that the offices mentioned above are unwitting tools of the plan
of which they may have absolutely no knowledge. (Emphasis ours.)

Among the means said to be used to carry out the plan the letter lists, under the heading "other operational technique
the following:

(a) Continuous speaking engagements all over the Philippines for Secretary Vargas to talk on "Communism"
and Apologetics on civilian supremacy over the military;

(b) Articles in magazines, news releases, and hundreds of letters — "typed in two (2) typewriters only" — to
Editors of magazines and newspapers, extolling Secretary Vargas as the "hero of democracy in 1951, 1953,
1955 and 1957 elections";

(c) Radio announcements extolling Vargas and criticizing the administration;

(d) Virtual assumption by Vargas of the functions of the Chief of Staff and an attempt to pack key positions in
several branches of the Armed Forces with men belonging to his clique;

(e) Insidious propaganda and rumors spread in such a way as to give the impression that they reflect the
feeling of the people or the opposition parties, to undermine the administration.

Plan No. II is said to be a "coup d'etat", in connection with which the "planners" had gone no further than the planning
stage, although the plan "seems to be held in abeyance and subject to future developments".

Plan No. III is characterized as a modification of Plan No. I, by trying to assuage the President and the public with a
loyalty parade, in connection with which Gen. Arellano delivered a speech challenging the authority and integrity of
Congress, in an effort to rally the officers and men of the AFP behind him, and gain popular and civilian support.

The letter in question recommended.: (1) that Secretary Vargas be asked to resign; (2) that the Armed Forces be
divorced absolutely from politics; (3) that the Secretary of National Defense be a civilian, not a professional military
man; (4) that no Congressman be appointed to said office; (5) that Gen. Arellano be asked to resign or retire; (6) that
the present chiefs of the various intelligence agencies in the Armed Forces including the chiefs of the NICA, NBI, and
other intelligence agencies mentioned elsewhere in the letter, be reassigned, considering that "they were handpicked
by Secretary Vargas and Gen. Arellano", and that, "most probably, they belong to the Vargas-Arellano clique"; (7)
that all military personnel now serving civilian offices be returned to the AFP, except those holding positions by
provision of law; (8) that the Regular Division of the AFP stationed in Laur, Nueva Ecija, be dispersed by batallion
strength to the various stand-by or training divisions throughout the country; and (9) that Vargas and Arellano should
disqualify themselves from holding or undertaking an investigation of the planned coup d'etat".

We are satisfied that the letter in question is not sufficient to support plaintiffs' action for damages. Although the letter
says that plaintiffs are under the control of the unnamed persons therein alluded to as "planners", and that, having
been handpicked by Secretary Vargas and Gen. Arellano, plaintiffs "probably belong to the Vargas-Arellano clique", it
should be noted that defendant, likewise, added that "it is of course possible" that plaintiffs "are unwitting tools of the
plan of which they may have absolutely no knowledge". In other words, the very document upon which plaintiffs'
action is based explicitly indicates that they might be absolutely unaware of the alleged operational plans, and that
they may be merely unwitting tools of the planners. We do not think that this statement is derogatory to the plaintiffs,
to the point of entitling them to recover damages, considering that they are officers of our Armed Forces, that as such
they are by law, under the control of the Secretary of National Defense and the Chief of Staff, and that the letter in
question seems to suggest that the group therein described as "planners" include these two (2) high ranking officers.

It is true that the complaint alleges that the open letter in question was written by the defendant, knowing that it is
false and with the intent to impeach plaintiffs' reputation, to expose them to public hatred, contempt, dishonor and
ridicule, and to alienate them from their associates, but these allegations are mere conclusions which are inconsistent
with the contents of said letter and can not prevail over the same, it being the very basis of the complaint. Then too,
when plaintiffs allege in their complaint that said communication is false, they could not have possibly meant that they
were aware of the alleged plan to stage a coup d'etat or that they were knowingly tools of the "planners". Again, the
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aforementioned passage in the defendant's letter clearly implies that plaintiffs were not among the "planners" of said
coup d'etat, for, otherwise, they could not be "tools", much less, unwittingly on their part, of said "planners".