HUMAN RIGHTS PRELIMFULLTEXT CASES
G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT
AUTHORITY, Petitioner, v. COURT OF
APPEALS, HON. MANUEL JN. SERAPIO,
Presiding Judge RTC, Branch 127,
Caloocan City, HON. MACARIO A. ASISTIO,
JR., City Mayor of Caloocan and/or THE
CITY GOVERNMENT OF
CALOOCAN, Respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan
for petitioner.chanrobles virtual law library
The City Legal Officer & Chief, Law
Department for Mayor Macario A. Asistio, Jr.
and the City Government of Caloocan.
ROMERO, J.:
The clash between the responsibility of the City
Government of Caloocan to dispose off the 350
tons of garbage it collects daily and the
growing concern and sensitivity to a pollution-
free environment of the residents of Barangay
Camarin, Tala Estate, Caloocan City where
these tons of garbage are dumped everyday is
the hub of this controversy elevated by the
protagonists to the Laguna Lake Development
Authority (LLDA) for
adjudication.chanroblesvirtualawlibrarychanrobl
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The instant case stemmed from an earlier
petition filed with this Court by Laguna Lake
Development Authority (LLDA for short)
docketed as G.R.
No. 107542 against the City Government of
Caloocan, et al. In the Resolution of November
10, 1992, this Court referred G.R. No. 107542
to the Court of Appeals for appropriate
disposition. Docketed therein as CA-G.R. SP
No. 29449, the Court of Appeals, in a
decision 1promulgated on January 29, 1993
ruled that the LLDA has no power and authority
to issue a cease and desist order enjoining the
dumping of garbage in Barangay Camarin,
Tala Estate, Caloocan City. The LLDA now
seeks, in this petition, a review of the decision
of the Court of
Appeals.chanroblesvirtualawlibrarychanrobles
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The facts, as disclosed in the records, are
undisputed.chanroblesvirtualawlibrarychanrobl
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On March 8, 1991, the Task Force Camarin
Dumpsite of Our Lady of Lourdes Parish,
Barangay Camarin, Caloocan City, filed a
letter-complaint 2with the Laguna Lake
Development Authority seeking to stop the
operation of the 8.6-hectare open garbage
dumpsite in Tala Estate, Barangay Camarin,
Caloocan City due to its harmful effects on the
health of the residents and the possibility of
pollution of the water content of the
surrounding
area.chanroblesvirtualawlibrarychanrobles
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On November 15, 1991, the LLDA conducted
an on-site investigation, monitoring and test
sampling of the leachate 3that seeps from said
dumpsite to the nearby creek which is a
tributary of the Marilao River. The LLDA Legal
and Technical personnel found that the City
Government of Caloocan was maintaining an
open dumpsite at the Camarin area without first
securing an Environmental Compliance
Certificate (ECC) from the Environmental
Management Bureau (EMB) of the Department
of Environment and Natural Resources, as
required under Presidential Decree No.
1586, 4and clearance from LLDA as required
under Republic Act No. 4850, 5as amended by
Presidential Decree No. 813 and Executive
Order No. 927, series of 1983. 6chanrobles
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After a public hearing conducted on December
4, 1991, the LLDA, acting on the complaint of
Task Force Camarin Dumpsite, found that the
water collected from the leachate and the
receiving streams could considerably affect the
quality, in turn, of the receiving waters since it
indicates the presence of bacteria, other than
coliform, which may have contaminated the
sample during collection or handling. 7On
December 5, 1991, the LLDA issued a Cease
and Desist Order 8ordering the City
Government of Caloocan, Metropolitan Manila
Authority, their contractors, and other entities,
to completely halt, stop and desist from
dumping any form or kind of garbage and other
waste matter at the Camarin
dumpsite.chanroblesvirtualawlibrarychanrobles
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The dumping operation was forthwith stopped
by the City Government of Caloocan. However,
sometime in August 1992 the dumping
operation was resumed after a meeting held in
July 1992 among the City Government of
Caloocan, the representatives of Task Force
Camarin Dumpsite and LLDA at the Office of
Environmental Management Bureau Director
Rodrigo U. Fuentes failed to settle the
problem.chanroblesvirtualawlibrarychanrobles
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 HUMAN RIGHTS PRELIMFULLTEXT CASES
After an investigation by its team of legal and
technical personnel on August 14, 1992, the
LLDA issued another order reiterating the
December 5, 1991, order and issued an Alias
Cease and Desist Order enjoining the City
Government of Caloocan from continuing its
dumping operations at the Camarin
area.chanroblesvirtualawlibrarychanrobles
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On September 25, 1992, the LLDA, with the
assistance of the Philippine National Police,
enforced its Alias Cease and Desist Order by
prohibiting the entry of all garbage dump trucks
into the Tala Estate, Camarin area being
utilized as a injunction enjoining the LLDA, its agent and all
dumpsite.chanroblesvirtualawlibrarychanrobles
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Pending resolution of its motion for
reconsideration earlier filed on September 17,
1992 with the LLDA, the City Government of
Caloocan filed with the Regional Trial Court of
Caloocan City an action for the declaration of
nullity of the cease and desist order with prayer
for the issuance of writ of injunction, docketed
as Civil Case No. C-15598. In its complaint, the
City Government of Caloocan sought to be
declared as the sole authority empowered to
promote the health and safety and enhance the
right of the people in Caloocan City to a
balanced ecology within its territorial
jurisdiction. 9chanrobles virtual law library
On September 25, 1992, the Executive Judge
of the Regional Trial Court of Caloocan City
issued a temporary restraining order enjoining
the LLDA from enforcing its cease and desist
order. Subsequently, the case was raffled to
the Regional Trial Court, Branch 126 of
Caloocan which, at the time, was presided over
by Judge Manuel Jn. Serapio of the Regional
Trial Court, Branch 127, the pairing judge of
the recently-retired presiding
judge.chanroblesvirtualawlibrarychanrobles
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The LLDA, for its part, filed on October 2, 1992
a motion to dismiss on the ground, among
others, that under Republic Act No. 3931, as
amended by Presidential Decree No. 984,
otherwise known as the Pollution Control Law,
the cease and desist order issued by it which is
the subject matter of the complaint is
reviewable both upon the law and the facts of
the case by the Court of Appeals and not by
the Regional Trial Court. 10chanrobles virtual
law library
On October 12, 1992 Judge Manuel Jn.
Serapio issued an order consolidating Civil
Case No. C-15598 with Civil Case No. C-
15580, an earlier case filed by the Task Force
Camarin Dumpsite entitled "Fr. John Moran, et
al. vs. Hon. Macario Asistio." The LLDA,
however, maintained during the trial that the
foregoing cases, being independent of each
other, should have been treated
separately.chanroblesvirtualawlibrarychanroble
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On October 16, 1992, Judge Manuel Jn.
Serapio, after hearing the motion to dismiss,
issued in the consolidated cases an
order 11denying LLDA's motion to dismiss and
granting the issuance of a writ of preliminary
persons acting for and on its behalf, from
enforcing or implementing its cease and desist
order which prevents plaintiff City of Caloocan
from dumping garbage at the Camarin
dumpsite during the pendency of this case
and/or until further orders of the
court.chanroblesvirtualawlibrarychanrobles
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On November 5, 1992, the LLDA filed a petition
for certiorari, prohibition and injunction with
prayer for restraining order with the Supreme
Court, docketed as G.R. No. 107542, seeking
to nullify the aforesaid order dated October 16,
1992 issued by the Regional Trial Court,
Branch 127 of Caloocan City denying its
motion to
dismiss.chanroblesvirtualawlibrarychanrobles
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The Court, acting on the petition, issued a
Resolution 12on November 10, 1992 referring
the case to the Court of Appeals for proper
disposition and at the same time, without giving
due course to the petition, required the
respondents to comment on the petition and
file the same with the Court of Appeals within
ten (10) days from notice. In the meantime, the
Court issued a temporary restraining order,
effective immediately and continuing until
further orders from it, ordering the respondents:
(1) Judge Manuel Jn. Serapio, Presiding
Judge, Regional Trial Court, Branch 127,
Caloocan City to cease and desist from
exercising jurisdiction over the case for
declaration of nullity of the cease and desist
order issued by the Laguna Lake Development
Authority (LLDA); and (2) City Mayor of
Caloocan and/or the City Government of
Caloocan to cease and desist from dumping its
garbage at the Tala Estate, Barangay Camarin,
Caloocan
City.chanroblesvirtualawlibrarychanrobles
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 HUMAN RIGHTS PRELIMFULLTEXT CASES
Respondents City Government of Caloocan
and Mayor Macario A. Asistio, Jr. filed on
November 12, 1992 a motion for
reconsideration and/or to quash/recall the
temporary restraining order and an urgent
motion for reconsideration alleging that ". . . in
view of the calamitous situation that would
arise if the respondent city government fails to
collect 350 tons of garbage daily for lack of
dumpsite (i)t is therefore, imperative that the
issue be resolved with dispatch or with
sufficient leeway to allow the respondents to
find alternative solutions to this garbage
problem."chanrobles virtual law library
On November 17, 1992, the Court issued a
Resolution 13directing the Court of Appeals to
immediately set the case for hearing for the
purpose of determining whether or not the
temporary restraining order issued by the Court
should be lifted and what conditions, if any,
may be required if it is to be so lifted or whether
the restraining order should be maintained or
converted into a preliminary
injunction.chanroblesvirtualawlibrarychanrobles
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The Court of Appeals set the case for hearing
on November 27, 1992, at 10:00 in the morning
at the Hearing Room, 3rd Floor, New Building,
Court of Appeals. 14After the oral argument, a
conference was set on December 8, 1992 at
10:00 o'clock in the morning where the Mayor
of Caloocan City, the General Manager of
LLDA, the Secretary of DENR or his duly
authorized representative and the Secretary of
DILG or his duly authorized representative
were required to
appear.chanroblesvirtualawlibrarychanrobles
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It was agreed at the conference that the LLDA
had until December 15, 1992 to finish its study
and review of respondent's technical plan with
respect to the dumping of its garbage and in
the event of a rejection of respondent's
technical plan or a failure of settlement, the
parties will submit within 10 days from notice
their respective memoranda on the merits of
the case, after which the petition shall be
deemed submitted for
 15
resolution. Notwithstanding such efforts, the
parties failed to settle the
dispute.chanroblesvirtualawlibrarychanrobles
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On April 30, 1993, the Court of Appeals
promulgated its decision holding that: (1) the
Regional Trial Court has no jurisdiction on
appeal to try, hear and decide the action for
annulment of LLDA's cease and desist order,
including the issuance of a temporary
restraining order and preliminary injunction in
relation thereto, since appeal therefrom is
within the exclusive and appellate jurisdiction of
the Court of Appeals under Section 9, par. (3),
of Batas Pambansa Blg. 129; and (2) the
Laguna Lake Development Authority has no
power and authority to issue a cease and
desist order under its enabling law, Republic
Act No. 4850, as amended by P.D. No. 813
and Executive Order
No. 927, series of
1983.chanroblesvirtualawlibrarychanrobles
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The Court of Appeals thus dismissed Civil
Case No. 15598 and the preliminary injunction
issued in the said case was set aside; the
cease and desist order of LLDA was likewise
set aside and the temporary restraining order
enjoining the City Mayor of Caloocan and/or
the City Government of Caloocan to cease and
desist from dumping its garbage at the Tala
Estate, Barangay Camarin, Caloocan City was
lifted, subject, however, to the condition that
any future dumping of garbage in said area,
shall be in conformity with the procedure and
protective works contained in the proposal
attached to the records of this case and found
on pages 152-160 of the Rollo, which was
thereby adopted by reference and made an
integral part of the decision, until the
corresponding restraining and/or injunctive
relief is granted by the proper Court upon
LLDA's institution of the necessary legal
proceedings.chanroblesvirtualawlibrarychanrob
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Hence, the Laguna Lake Development
Authority filed the instant petition for review
on certiorari, now docketed as G.R. No.
110120, with prayer that the temporary
restraining order lifted by the Court of Appeals
be re-issued until after final determination by
this Court of the issue on the proper
interpretation of the powers and authority of the
LLDA under its enabling
law.chanroblesvirtualawlibrarychanrobles
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On July, 19, 1993, the Court issued a
temporary restraining order 16enjoining the City
Mayor of Caloocan and/or the City Government
of Caloocan to cease and desist from dumping
its garbage at the Tala Estate, Barangay
Camarin, Caloocan City, effective as of this
date and containing until otherwise ordered by
the Court.chanroblesvirtualawlibrarychanrobles
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 HUMAN RIGHTS PRELIMFULLTEXT CASES
It is significant to note that while both parties in
this case agree on the need to protect the
environment and to maintain the ecological
balance of the surrounding areas of the
Camarin open dumpsite, the question as to
which agency can lawfully exercise jurisdiction
over the matter remains highly open to
question.chanroblesvirtualawlibrarychanrobles
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The City Government of Caloocan claims that it
is within its power, as a local government unit,
pursuant to the general welfare provision of the
Local Government Code, 17 to determine the
effects of the operation of the dumpsite on the
ecological balance and to see that such
balance is maintained. On the basis of said
contention, it questioned, from the inception of
the dispute before the Regional Trial Court of
Caloocan City, the power and authority of the
LLDA to issue a cease and desist order
enjoining the dumping of garbage in the
Barangay Camarin over which the City
Government of Caloocan has territorial
jurisdiction.chanroblesvirtualawlibrarychanroble
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The Court of Appeals sustained the position of
the City of Caloocan on the theory that Section
7 of Presidential Decree No. 984, otherwise
known as the Pollution Control law, authorizing
the defunct National Pollution Control
Commission to issue an ex-parte cease and
desist order was not incorporated in
Presidential Decree No. 813 nor in Executive
Order No. 927, series of
1983. The Court of Appeals ruled that under
Section 4, par. (d), of Republic Act No. 4850,
as amended, the LLDA is instead required "to
institute the necessary legal proceeding
against any person who shall commence to
implement or continue implementation of any
project, plan or program within the Laguna de
Bay region without previous clearance from the
Authority."chanrobles virtual law library
The LLDA now assails, in this partition for
review, the abovementioned ruling of the Court
of Appeals, contending that, as an
administrative agency which was granted
regulatory and adjudicatory powers and
functions by Republic Act No. 4850 and its
amendatory laws, Presidential Decree No. 813
and Executive Order No. 927, series of 1983, it
is invested with the power and authority to
issue a cease and desist order pursuant to
Section 4 par. (c), (d), (e), (f) and (g) of
Executive Order No. 927 series of 1983 which
provides, thus:
Sec. 4. Additional Powers and Functions. The
authority shall have the following powers and
functions:
xxx xxx xxx chanrobles virtual law library
(c) Issue orders or decisions to compel
compliance with the provisions of this
Executive Order and its implementing rules and
regulations only after proper notice and
hearing.chanroblesvirtualawlibrarychanrobles
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(d) Make, alter or modify orders requiring the
discontinuance of pollution specifying the
conditions and the time within which such
discontinuance must be
accomplished.chanroblesvirtualawlibrarychanro
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(e) Issue, renew, or deny permits, under such
conditions as it may determine to be
reasonable, for the prevention and abatement
of pollution, for the discharge of sewage,
industrial waste, or for the installation or
operation of sewage works and industrial
disposal system or parts
thereof.chanroblesvirtualawlibrarychanrobles
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(f) After due notice and hearing, the Authority
may also revoke, suspend or modify any permit
issued under this Order whenever the same is
necessary to prevent or abate
pollution.chanroblesvirtualawlibrarychanrobles
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(g) Deputize in writing or request assistance of
appropriate government agencies or
instrumentalities for the purpose of enforcing
this Executive Order and its implementing rules
and regulations and the orders and decisions
of the Authority.
The LLDA claims that the appellate court
deliberately suppressed and totally disregarded
the above provisions of Executive Order No.
927, series of 1983, which granted
administrative quasi-judicial functions to LLDA
on pollution abatement
cases.chanroblesvirtualawlibrarychanrobles
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In light of the relevant environmental protection
laws cited which are applicable in this case,
and the corresponding overlapping jurisdiction
of government agencies implementing these
laws, the resolution of the issue of whether or
not the LLDA has the authority and power to
issue an order which, in its nature and effect
was injunctive, necessarily requires a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
determination of the threshold question: Does
the Laguna Lake Development Authority, under
its Charter and its amendatory laws, have the
authority to entertain the complaint against the
dumping of garbage in the open dumpsite in
Barangay Camarin authorized by the City
Government of Caloocan which is allegedly
endangering the health, safety, and welfare of
the residents therein and the sanitation and
quality of the water in the area brought about
by exposure to pollution caused by such open
garbage dumpsite?chanrobles virtual law
library
The matter of determining whether there is
such pollution of the environment that requires
control, if not prohibition, of the operation of a
business establishment is essentially
addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of
Section 16 of Executive Order No. 192, series
of 1987, 18has assumed the powers and
functions of the defunct National Pollution
Control Commission created under Republic
Act No. 3931. Under said Executive Order, a
Pollution Adjudication Board (PAB) under the
Office of the DENR Secretary now assumes
the powers and functions of the National
Pollution Control Commission with respect to
adjudication of pollution cases. 19chanrobles
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As a general rule, the adjudication of pollution
cases generally pertains to the Pollution
Adjudication Board (PAB), except in cases
where the special law provides for another
forum. It must be recognized in this regard that
the LLDA, as a specialized administrative
agency, is specifically mandated under
Republic Act No. 4850 and its amendatory laws
to carry out and make effective the declared
national policy 20of promoting and accelerating
the development and balanced growth of the
Laguna Lake area and the surrounding
provinces of Rizal and Laguna and the cities of
San Pablo, Manila, Pasay, Quezon and
Caloocan 21with due regard and adequate
provisions for environmental management and
control, preservation of the quality of human
life and ecological systems, and the prevention
of undue ecological disturbances, deterioration
and pollution. Under such a broad grant and
power and authority, the LLDA, by virtue of its
special charter, obviously has the responsibility
to protect the inhabitants of the Laguna Lake
region from the deleterious effects of pollutants
emanating from the discharge of wastes from
the surrounding areas. In carrying out the
aforementioned declared policy, the LLDA is
mandated, among others, to pass upon and
approve or disapprove all plans, programs, and
projects proposed by local government
offices/agencies within the region, public
corporations, and private persons or
enterprises where such plans, programs and/or
projects are related to those of the LLDA for
the development of the region. 22chanrobles
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In the instant case, when the complainant Task
Force Camarin Dumpsite of Our Lady of
Lourdes Parish, Barangay Camarin, Caloocan
City, filed its letter-complaint before the LLDA,
the latter's jurisdiction under its charter was
validly invoked by complainant on the basis of
its allegation that the open dumpsite project of
the City Government of Caloocan in Barangay
Camarin was undertaken without a clearance
from the LLDA, as required under Section 4,
par. (d), of Republic Act. No. 4850, as
amended by P.D. No. 813 and Executive Order
No. 927. While there is also an allegation that
the said project was without an Environmental
Compliance Certificate from the Environmental
Management Bureau (EMB) of the DENR, the
primary jurisdiction of the LLDA over this case
was recognized by the Environmental
Management Bureau of the DENR when the
latter acted as intermediary at the meeting
among the representatives of the City
Government of Caloocan, Task Force Camarin
Dumpsite and LLDA sometime in July 1992 to
discuss the possibility of
re-opening the open
dumpsite.chanroblesvirtualawlibrarychanrobles
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Having thus resolved the threshold question,
the inquiry then narrows down to the following
issue: Does the LLDA have the power and
authority to issue a "cease and desist" order
under Republic Act No. 4850 and its
amendatory laws, on the basis of the facts
presented in this case, enjoining the dumping
of garbage in Tala Estate, Barangay Camarin,
Caloocan
City.chanroblesvirtualawlibrarychanrobles
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The irresistible answer is in the
affirmative.chanroblesvirtualawlibrarychanroble
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The cease and desist order issued by the
LLDA requiring the City Government of
Caloocan to stop dumping its garbage in the
Camarin open dumpsite found by the LLDA to
have been done in violation of Republic Act No.
4850, as amended, and other relevant
environment laws, 23cannot be stamped as an
unauthorized exercise by the LLDA of
injunctive powers. By its express terms,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Republic Act No. 4850, as amended by P.D.
No. 813 and Executive Order No. 927, series of
1983, authorizes the LLDA to "make, alter or
modify order requiring the discontinuance or
pollution." 24(Emphasis supplied) Section 4, par.
(d) explicitly authorizes the LLDA
to make whatever order may be necessary in
the exercise of its
jurisdiction.chanroblesvirtualawlibrarychanroble
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To be sure, the LLDA was not expressly
conferred the power "to issue and ex-
parte cease and desist order" in a language, as
suggested by the City Government of
Caloocan, similar to the express grant to the
defunct National Pollution Control Commission
under Section 7 of P.D. No. 984 which,
admittedly was not reproduced in P.D. No. 813
and E.O. No. 927, series of 1983. However, it
would be a mistake to draw therefrom the
conclusion that there is a denial of the power to
issue the order in question when the power
"to make, alter or modify orders requiring the
discontinuance of pollution" is expressly and
clearly bestowed upon the LLDA by Executive
Order No. 927, series of
1983.chanroblesvirtualawlibrarychanrobles
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Assuming arguendo that the authority to issue
a "cease and desist order" were not expressly
conferred by law, there is jurisprudence
enough to the effect that the rule granting such
authority need not necessarily be
express. 25While it is a fundamental rule that an
administrative agency has only such powers as
are expressly granted to it by law, it is likewise
a settled rule that an administrative agency has
also such powers as are necessarily implied in
the exercise of its express powers. 26In the
exercise, therefore, of its express powers
under its charter as a regulatory and quasi-
judicial body with respect to pollution cases in
the Laguna Lake region, the authority of the
LLDA to issue a "cease and desist order" is,
perforce, implied. Otherwise, it may well be
reduced to a "toothless" paper
agency.chanroblesvirtualawlibrarychanrobles
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In this connection, it must be noted that
in Pollution Adjudication Board v. Court of
Appeals, et al., 27the Court ruled that the
Pollution Adjudication Board (PAB) has the
power to issue an ex-parte cease and desist
order when there is prima facie evidence of an
establishment exceeding the allowable
standards set by the anti-pollution laws of the
country. The ponente, Associate Justice
Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted
by law and regulations in situations like that
here presented precisely because stopping the
continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters
of the Philippines cannot be made to wait until
protracted litigation over the ultimate
correctness or propriety of such orders has run
its full course, including multiple and sequential
appeals such as those which Solar has taken,
which of course may take several years. The
relevant pollution control statute and
implementing regulations were enacted and
promulgated in the exercise of that pervasive,
sovereign power to protect the safety, health,
and general welfare and comfort of the public,
as well as the protection of plant and animal
life, commonly designated as the police power.
It is a constitutional commonplace that the
ordinary requirements of procedural due
process yield to the necessities of protecting
vital public interests like those here involved,
through the exercise of police power. . . .
The immediate response to the demands of
"the necessities of protecting vital public
interests" gives vitality to the statement on
ecology embodied in the Declaration of
Principles and State Policies or the 1987
Constitution. Article II, Section 16 which
provides:
The State shall protect and advance the right of
the people to a balanced and healthful ecology
in accord with the rhythm and harmony of
nature.
As a constitutionally guaranteed right of every
person, it carries the correlative duty of non-
impairment. This is but in consonance with the
declared policy of the state "to protect and
promote the right to health of the people and
instill health consciousness among them." 28It is
to be borne in mind that the Philippines is party
to the Universal Declaration of Human Rights
and the Alma Conference Declaration of 1978
which recognize health as a fundamental
human right. 29chanrobles virtual law library
The issuance, therefore, of the cease and
desist order by the LLDA, as a practical matter
of procedure under the circumstances of the
case, is a proper exercise of its power and
authority under its charter and its amendatory
laws. Had the cease and desist order issued by
the LLDA been complied with by the City
Government of Caloocan as it did in the first
instance, no further legal steps would have
been
necessary.chanroblesvirtualawlibrarychanroble
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 HUMAN RIGHTS PRELIMFULLTEXT CASES
The charter of LLDA, Republic Act No. 4850,
as amended, instead of conferring upon the
LLDA the means of directly enforcing such
orders, has provided under its Section 4 (d) the
power to institute "necessary legal proceeding
against any person who shall commence to
implement or continue implementation of any
project, plan or program within the Laguna de
Bay region without previous clearance from the
LLDA."chanrobles virtual law library
Clearly, said provision was designed to invest
the LLDA with sufficiently broad powers in the
regulation of all projects initiated in the Laguna
Lake region, whether by the government or the
private sector, insofar as the implementation of
these projects is concerned. It was meant to
deal with cases which might possibly arise
where decisions or orders issued pursuant to
the exercise of such broad powers may not be
obeyed, resulting in the thwarting of its laudabe
objective. To meet such contingencies, then
the writs of mandamus and injunction which
are beyond the power of the LLDA to issue,
may be sought from the proper
courts.chanroblesvirtualawlibrarychanrobles
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Insofar as the implementation of relevant anti-
pollution laws in the Laguna Lake region and
its surrounding provinces, cities and towns are
concerned, the Court will not dwell further on
the related issues raised which are more
appropriately addressed to an administrative
agency with the special knowledge and
expertise of the
LLDA.chanroblesvirtualawlibrarychanrobles
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WHEREFORE, the petition is GRANTED. The
temporary restraining order issued by the Court
on July 19, 1993 enjoining the City Mayor of
Caloocan and/or the City Government of
Caloocan from dumping their garbage at the
Tala Estate, Barangay Camarin, Caloocan City
is hereby made
permanent.chanroblesvirtualawlibrarychanroble
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SO ORDERED.
[ G.R. No. L-1573, March 29, 1948 ]
KAISAHAN NG MGA MANGGAGAWA SA
KAHOY SA PILIPINAS, PETITIONER AND
APPELLANT, VS. GOTAMCO SAW MILLS,
REPONDENT AND APPELLEE.
DECISION
HILADO, J.:
In its petition for a writ of certiorari, the
"Kaisahan ng mga Manggagawa sa Kahoy sa
Pllipinas" prays, for the reasons therein set
forth, that we reverse and vacate the orders of
the Court of Industrial Relations dated
September 23, 1946 (Annex A) and March 28,
1947 (Annex B) and its resolution of July 11,
1947 (Annex C).
In the order of September 23, 1946, it is recited
that the laborers in the main case (Case No.
31-V of the Court of Industrial Relations,
declared a strike on September 10, 1946,
"which suspended all the work in the
respondent company"; that on September 19,
1946 (presumably after the case had been
brought to the Court of Industrial Relations)
said court informed the parties that the
continuation of the strike would necessarily
prejudice both parties, and that a temporary
solution, satisfactory to both parties, must be
found to put an end to it, at the same time,
urging both parties to be reasonable in their
attitude towards each other; that ample
opportunity was given to both parties to.iron out
their differences until September 21, 1946,
when the court continued the conference at
which, among other things, the leader of the
laborers informed the court that, although said
laborers were not exactly satisfied with the
arrangement, in order to cooperate with the
court and with the parties so that the laborers
could return to work and the company resume
its operation, they had no objection to
accepting a temporary settlement of P3.50
without meal, as against the proposal of the
company of P2.00 without meal; that after a
series of conferences held on September 23,
1946, the date of the order now under
consideration, the labor leader decided to
accept a temporary arrangement of the wage
problem as proposed by the management, that
is, P2.00 over-all increase without meal to all
striking laborers; that Francisco Cruz,
President of the Union, manifested that he
would have a hard time convincing the
laborers, but in view of their desire to preserve
the harmony which used to exist between the
parties, they were going to accede to this
proposition, provided that the management
would permit the laborers to bring with them
home, if available, small pieces of lumber to be
utilized as firewood; that the negotiations
culminated in an agreement by which the
laborers would return to their work on Tuesday,
September 24, 1946, at 7:00 o'clock in the
morning, and the respondent company would
resume its operation on said date under the
following conditions:
"(1) That all the laborers and workingmen will
receive an over-all increase of P2.00 daily,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
without meal, over the wages received by them
before the strike;
"(2) That the management will permit the
laborers to bring with them home, if available,
small pieces of lumber to be utilized as
firewood; and
"(3) That the foregoing increase and privilege
will take effect upon the return of the
workingmen to work until the final
determination of the present controversy."
The same order then proceeds as follows:
"Finding the above temporary agreement
between the parties to be reasonable and
advantageous to both, the court approves the
same and orders the striking laborers of the
respendent company to return to their work on
Tuesday, September 24, 1946, at 7:00 o'clock
in the morning, and the respondent company to
resume its operation and admit the striking
laborers. The respondent company is enjoined
not to lay-off, suspend or dismiss any laborer
affiliated with the petitioning union, nor
suspend the operation of the temporary
agreement, and the labor union is enjoined not
to stage a walk-put or strike during the
pendency of the hearing."
From the order of March 27, 1947, it appears
that on January 7, 1947. "the respondent
Gotamco Saw Mill filed with the Court of
Industrial delations an urgent motion asking
that the petitioning union be held for contempt
of court for having staged a strike during the
pendency of the main case "in violation of the
order of this court dated September 23, 1946";
that on January 9, 1947, petitioner filed an
answer with a counter-petition alleging, among
other things, that a representative of petitioner
conferred with respondent regarding certain
discriminations obtaining in the respondent's
saw mill, but instead of entertaining their
grievances said respondent in a haughty and
arbitrary manner ordered the stoppage of the
work and consequently the workers did then
and there stop working; and in the counter-
petition said petitioner asked that the
respondent be held for contempt for having
employed four new Chinese laborers during the
pendency of the hearing of the main case,
without express authority of the court and in
violation of Section 19 of Commonwealth Act
No. 103, as amended. It is also recited in the
said order of March 28, 1947, that on that
same date, January 9f 1947, respondent filed
with the court another urgent motion for
contempt against the petitioning union for
picketing on the premises of the respondent's
saw mill and for grave threats which prevented
the remaining laborers from working.
Upon request of both parties, the court required
the presentation of evidence pertinent to the
incidents thus raised. Thereafter, the said order
of March 28, 1947, was entered, and the court
stated therein the three questions to be
determined as follows: first, if there was
violation by the petitioning union of the order of
said court of September 23, 1946, which would
warrant the commencement of contempt
proceedings; second, whether the facts and
circumstances attending the picketing
constitute contempt of court; third, whether
there was violation by the respondent of
Section 19 of Commonwealth Act No. 103, as
amended, in taking in four Chinese laborers
pending the hearing and without express
authority of the court; and fourth, whether the
dismissal of Maximino Millan was with or
without just cause.
The court, passing upon these questions,
found and held:
"(1) That there was a violation of the order of
the court dated September 23, 1946, by the
petitioning union and thereby ordered Atty.
Pastor T. Reyes, special agent of the court, to
take such action as may be warranted in the
premises against the person or persons
responsible therefor for contempt;
"(2) That the question of picketing being closely
and intimately related to the strike which had
been found illegal, did not need to be passed
upon, it being imbibed by question No. 1;
"(3) That there being no strong and clear proof-
on the question of respondent having violated
Section 19 of Commonwealth Act No. 103, as
amended, respondent was thereby exonerated
from any liability in connection with the alleged
employment of four Chinamen;
"(4) That Maximino Millan being of troublesome
nature and unworthy to work among his fellow
laborers, his petition for reinstatement
contained in demand No. 5 of the main . case
was thereby denied. "
The above cited resolution of July 11, 1947,
was entered by the Court of Industrial
Relations, fitting in bane, and denied
reconsideration of its order of March 28, 1947,
as requested by the petitioning union. In the
course of said resolution, the union's
contention is recited that the provisions of
Section 19 of Commonwealth Act No. 103, as
amended, upon which the order of September
23, 1946, was based, had not been complied
with; in other words, that the said order was not
issued in conformity with the requisites of the
said section, because, it was said, before its
issuance there had been no proper hearing
and there was no express finding by the court
 HUMAN RIGHTS PRELIMFULLTEXT CASES
that public interest required the return of the
striking workers. The further contention is
therein recited that, granting that the order of
September 23, 1946, was issued in conformity
with said Section 19, said provision is
unconstitutional for being in violation of the
organic proscription of involuntary servitude.
Passing upon these contentions, the Court of
Industrial Relations said:
"The order of September 23, 1946, was issued
in conformity with the provisions of Section 19.
Said order was proposed and issued on the
basis of the agreement entered into by the
parties after the preliminary hearings and
conferences. While it is true that the order of
the Court now in question did not make any
express finding as to whether public interest
required the return of the striking workers, it is
undeniable, however, that until the presett the
main case has not been decided or settled in
view of the numerous incidents arising
therefrom since the certification of the dispute
by the Department of Labor to the Court on
September 14, 1946. The fact that the Court
did not decide nor settle the dispute promptly,
need not be stated in the said order because it
is a fact which is borne out by the entire record
of the case. If the petitioner was aggrieved by
the terms of the order, it could have objected
right then and there and could have appealed
said order within the period prescribed by law,
and not to wait after it had become final,
definite, and conclusive. The record shows that
the petitioner in its answer and counter-petition
for contempt based its complaint upon Section
19 (Incidental Case No. 31-V[4]). It is, indeed,
strange that after taking advantage of this order
and enjoyed (enjoying) the benefits thereunder,
the petitioner now comes to impugn and
challenge the validity. The second motion for
reconsideration is a sad instance where the
petitioner attacks the validity of an order under
which it once took shelter.
"The court believes that section 19 is
constitutional. To start with, this section is
presumed to be constitutional. Several laws
promulgated which apparently infringe the
human rights of individuals were 'subjected to
regulation by the State basically in the exercise
of its paramount police power'. The provisions
of Act No. 103 were inspired by the
constitutional injunction making it the concern
of the State to promote social justice to insure
the well being and economic security of all the
people. In order to attain this object, section 19
was promulgated which grants to labor what it
grants to capital and denies to labor what it
deftits to capital. Section 19 complements the
powers of the Court to settle industrial disputes
and renders effective such powers which are
conferred upon it by the different provisions of
the Court's organic law, more particularly,
sections 1 and 4, and 'other plenary powers
conferred upon the Court to enable it to settle
all questions, matters, controversies or
disputes arising between, and/or affecting
employers and employees', 'to prevent non-
pacific methods in the determination of
industrial or agricultural disputes' (International
HardWood and Venser Co. vs. The Pangil
Federation of Laborers, G. R. No. 47178, cited
in the case of Mindanao Bus Co. vs. Mindanao
Bus Co. Employees' Association, 40 Off. Gaz.
115). Section 4 has been upheld in the case
aforecited. It appearing that the power of this
Court to execute its orders under section 19 is
also the same power it possesses under
section 4 of the same act, it inferentially follows
that Section 19 is likewise valid. (Manila
Trading and Supply Co. vs. Philippine Labor
Union, G. R. No. 47796).'
In Manila Trading and Supply Company vs.
Philippine Labor Union, supra, this Court said:
"In the first place, the ultimate effect of
petitioner's theory is to concede to the Court of
Industrial Relations the power to deoide a case
under Section. 19 but deny it, the power to
execute its decisions thereon. The absurdity of
this proposition is too evident to require
argument. In the second place, considering
that the jurisdiction of the Court of Industrial
Relations under Section 19 is merely incidental
to the same jurisdiction it has previdusly
acquired under section 4 of the law, it follows
that the power to execute its orders under
section 19 is also the same power that it
possesses under section 4." (40 Off. Gaz.,
[14th Supp.] No. 23, p. 178.)
Among the powers thus conferred is that to
punish a violation of an order such as those
now under consideration as for contempt of
court.
We agree with the Court of Industrial Relations
that Section 19 of Commonwealth Act No. 103
is constitutional. It does not offend against the
constitutional inhibition proscribing involuntary
servitude. An employee entering into a contract
of employment after said law went into
effect, voluntarily accepts, among other
conditions, those prescribed in said section 19,
among which is the "implied condition that
when any dispute between the employer or
landlord and the employee, tenant or laborer
has been submitted to the Court of Industrial
Relations for settlement or arbitration, pursuant
to the provisions of this Act, and pending award
or decision by it, the employee, tenant or
laborer shall not strike or walk out of his
employment when so enjoined by the Court
after hearing and when public interest so
 HUMAN RIGHTS PRELIMFULLTEXT CASES
requires, and if he has already done so, that he
shall forthwith return to it, upon order of the
Court, which shall be issued only after hearing
when public interest so requires or when the
dispute can not, in its opinion, be promptly
decided or settled * * *". (Italics supplied).
The voluntariness of the employee's entering
into such a contract of employment he has a
free choice between entering into it or not with
such an implied condition, negatives the
possibility of involuntary servitude ensuing. The
resolution of July 11, 1947, states that the
order of September 23, 1946, was issued after
a series of preliminary hearings or
conferences, and we are satisfied that these
were "hearings" within the meaning of the
above mentioned section 19 of the law. The
record certainly reveals that what was done
during and what resulted from and
preliminary hearings or conferences were
reported to the court at a formal hearing. As to
public interest requiring that the court enjoin
the strike or walk out, or the return,of striking
laborers, aside from the legal presumption that
the Court of Industrial delations complied with
the provisions of the law in this respect, we
think that, considering the universally known
fact, of which this Court takes judicial notice,
that as a result of the destructions wrought by
the late war, the economic and social
rehabilitation of this country urgently demands
the reconstruction of industrial, commercial and
residential buildings, which in turn necessitates
building materials, in which lumber figures
prominently among the most vital, public
interest of a most real and positive character
has attached to the lumber business. It is
obvious that any undue stoppage or diminution
in the production of lumber or allied products
so sorely needed in reconstruction work will
inevitably tend to paralyze, impede or slow
down the countryfs program of rehabilitation
which, for obvious and natural reasons, the
government is striving to accelerate as much
as is humanly possible.
Besides, the order of the court was for the
striking workers to return to their work. And
thfct order was made after hearing, and,
moreover, section 19 of Commonwealth Act
Not 103, in providing for an order of the court
for the return of striking workers, authorizes
such order, among oiler cases, "when the
dispute can not, in its opinion, be promptly
decided or settled". The provision, says:"* * *
and if he has already done so (struck or walked
out), that he shall forthwith return to It, upon
order of the Court, which shall be issued only
after hearing when public interest so requires
or when the dispute cannot, in its opinion, be
promptly decided or settled" (Italics supplied).
In other words, the order to return, if the
dispute can be promptly decided or settled,
may be issued "only after hearing when public
interest so requires", but if in the court's opinion
the dispute can not be promptly decided or
settled, then it is also authorized After hearing
to issue the order: we contrue the provision to
mean that the very impossiblity of prompt
decision or settlement of the dispute confers
upon the court the power to issue the order for
the reason that the public has an interest in
preventing undue stoppage or paralyzation of
the wheels of industry. And, as well stated by
the court's resolution of July 11, 1947, this
impossibility of prompt decision or settlement
was a fact which was borne out by the entire
record of the case and did not need express
statement in the order.
Finally, this Court is not authorized to review
the findings of fact made by the Court of
Industrial Relations (Commonwealth Act No.
103, Section 15, as amended by
Commonwealth Act 559, section 2; Rule 44,
Rules of Court; National Labor Union vs. Phil.
Match Co., 40 Off. Gaz. 8th Supp. p. 134,
Bardwell Brothers vs. Phil. Labor Union, 39 Off.
Gaz, 1032; Pasumil Workers' Union vs. Court
of Industrial Relations, 40 Off. Gaz. 6th Supp.
p. 71).
However, Mr. Justice Briones thinks that we
should expressly reserve our opinion on the
constitutionality of the above statutory and
reglementary provisions should it, in the future,
become necessary to decide it.
For all these considerations, the orders and
resolution of the Court of Industrial Relations
assailed by the instant petition aye hereby
affirmed, with costs against petitioner-
appellant. So ordered.
Moran, C. J., Parás, Feria, Pablo, Bengzon,
Briones, Padilla, and Tuazon, JJ., concur.
CONCURRING AND DISSENTING
PERPECTO, J.:
We concur in the result of the decision in this
case, but we cannot agree with the
pronouncement depriving the Supreme Court
the power to revise findings of fact made by the
Court of Industrial Relations.
We are of opinion that such curtailment of the
powers of the Supreme Court is violative of the
spirit and purposes of Commonwealth Act No.
103. The power of revision granted by the
Supreme Court should not be limited so as to
 HUMAN RIGHTS PRELIMFULLTEXT CASES
deny relief to any party that may foundedly feel
aggrieved by any substantial finding of fact
made by the Court of Industrial Relations.
Many of the labor disputes that reach the Court
of Industrial Relations center on disputed facts,
such as reasonable salaries, reasonable
working conditions, periods of rest, reasons for
strikes or lockouts, injustice of the relations
between employer and employees, etc. The
aggrieved party must not be denied his day in
court in the highest tribunal.
Validity of Section 19 of Commonwealth Act
No. 103 is impugned on constitutional grounds,
upon the allegation that it is tantamount to
authorizing involuntary servitude. We cannot
agree with the proposition. Under said section,
the question of involuntary work is not involved,
but only the workability of the settlement of a
labor dispute contemplated by Commonwealth
Act No. 103. When workers on strike appear
before the Court of Industrial Relations to seek
remedy under Commonwealth Act No. 103,
they do so, on the assumption that the work in
their employment were and are agreeable to
their conscience and dignity and, as a matter of
fact, they claim the right to continue performing
the same work. Otherwise, they would not have
resorted to strike, a means resorted t,o to
compel the employer and let them continue
working, but on conditions more agreeable to
the workers. If the strikers should feel that their
work is in the nature of involuntary servitude,
they would not resort to a strike nor recur to the
Court of Industrial Relations, but will simply
resign and seek some other employment.
When the strikers are seeking remedy under
the law from the Court of Industrial Relations,
the court may impose such reasonable
conditions, one of them being that provided by
Section 19 of Commonwealth Act No. 103
prohibiting strikes or ordering strikers to return
to work. Those reasonable conditions are
considered as voluntarily accepted by the
laborers, not only because it is expressly
provided in Section 19 of Commonwealth Act
No. 103, but because it is a reasonable
implementation of the powers of the court to
effectively settle a labor controversy.
If the laborers should feel that they are
compelled against their will to perform
something which is repugnant to their
conscience or dignity, they need not resort to
any court action to seek judicial settlement of
the controversy, as they can resign from their
work and there is no power that can compel
them to continue therein.
Order and resolution affirmed.
[G.R. No. L-4352. September 28, 1951.]
VICTOR BOROVSKY, Petitioner, v. THE
COMMISSIONER OF IMMIGRATION and
THE DIRECTOR OF
PRISONS, Respondents.
Victor Borovsky in his own behalf.
First Assistant Solicitor General Roberto
Gianzon and Solicitor Florencio Villamor,
for Respondents.
SYLLABUS
1. ALIENS; STATELESS ALIENS HABEAS
CORPUS. — Aliens illegally staying in the
Philippines have no right of asylum therein
(Soewapadji v. Wixon, Sept. 13, 1946, 157 F.
ed., 289, 290) even if they are "stateless." It is
no less true however that foreign nationals, not
enemy, against whom no criminal charges
have been formally made or judicial order
issued, may not indefinitely be kept in
detention. The protection against deprivation of
liberty without due process of law and except
for crimes committed against the laws of the
land is not limited to Philippine citizens but
extends to all residents, except enemy aliens,
regardless of nationality. Whether an alien who
entered the country in violation of its
immigration laws may be detained as long as
the Government is unable to deport him, is
beside the point. Therefore, the writ of habeas
corpus will issue commanding the respondents
to release the petitioner from custody upon
these terms: The petitioner shall be placed
under the surveillance of the immigration
authorities or their agents in such form and
manner as may be deemed adequate to insure
that he keep peace and be available when the
Government is ready to deport him. The
surveillance shall be reasonable and the
question of reasonableness shall be submitted
to this Court or to the Court of First Instance of
Manila for decision in case of abuse. He shall
also put up a bond for the above purpose in the
amount of P5,000 with sufficient surety or
sureties, which bond the Commissioner of
Immigration is authorized to exact by Section
40 of Commonwealth Act No. 613.
DECISION
TUASON, J.:
This is a second petition for habeas
corpus filed by the petitioner with this Court,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the first having been denied in a decision
promulgated on June 30, 1949.
Victor A. Borovsky, the petitioner, claims to be
a stateless citizen, born in Shanghai, China, of
Russian parentage. He came to the Philippines
in 1936 and had resided therein ever since, if
the period of his detention be included.
On June 24, 1946, by order of the
Commissioner of Immigration, the petitioner
was arrested for investigation as to his past
activities. Following his arrest, a warrant for his
deportation was issued by the Deportation
Board, which is said to have found him an
undesirable alien, a vagrant and habitual
drunkard. The petitioner protests that he was
not given a hearing, nor informed of the
charges preferred against him. This point
however is unimportant in this proceeding.
In May, 1947, the petitioner was put on board a
ship which took him to Shanghai, but he was
not allowed to land there because he was not a
national of China and was not provided with an
entry visa. He was therefore brought back to
Manila and was confined to the new Bilibid
Prison in Muntinlupa until December 8, 1947,
when he was granted provisional release by
the President through the Secretary of Justice
for a period of six months. Before the expiration
of that period, namely, on March 20, 1948, the
Commissioner of Immigration caused his
rearrest and he has been in confinement in the
abovementioned prison ever since.
In his return to the writ, the Solicitor General in
behalf of the respondents alleges that the
Commissioner of Immigration "has availed of
every opportunity presented to carry out the
deportation order as shown by the fact that
when the petitioner was enjoying his
provisional release after the unsuccessful
attempt to deport him to Shanghai, China, he
was again re-arrested and flown to Cebu for
the purpose of placing him on board a Russian
vessel which had called at the port, with a view
to carrying out the deportation order issued
against him, but said deportation was not
carried out for the reason that the captain of
the said boat refused to take on board the
herein petitioner on the ground that he had no
permission from the Russian government to
take on board the petitioner." It is further
alleged that "the immigration officials have
taken steps regarding the disposition of those
foreigners subject to deportation while awaiting
availability of transportation or arrangements to
the place where they may be sent."cralaw
virtua1aw library
In this Court’s majority decision on the first
application it was observed that the applicant’s
detention was temporary, and it was held that
"temporary detention is a necessary step in the
process of exclusion or expulsion of
undesirable aliens and that pending
arrangements for his deportation, the
Government has the right to hold the
undesirable alien under confinement for a
reasonable length of time." It took note of the
fact that "this Government desires to expel the
alien, and does not relish keeping him at the
people’s expense . . . making efforts to carry
out the decree of exclusion by the highest
officer of the land." No period was fixed within
which the immigration authorities were to carry
out the contemplated deportation beyond the
statement that "The meaning of ’reasonable
time’ depends upon the circumstances,
specially the difficulties of obtaining a passport,
the availability of transportation, the diplomatic
arrangements with the governments concerned
and the efforts displayed to send the deportee
away," but the Court warned that "under
established precedents, too long a detention
may justify the issuance of a writ of habeas
corpus."cralaw virtua1aw library
Mr. Justice Paras, now Chief Justice, Mr.
Justice Feria, Mr. Justice Perfecto, and the
writer of this decision dissented. Mr. Justice
Feria and Mr. Justice Perfecto voted for
outright discharge of the prisoner from custody.
Mr. Justice Paras qualified his dissent by
stating that he might agree "to a further
detention of the herein petitioner, provided that
he be released if after six months, the
Government is still unable to deport him." This
writer joined in the latter dissent but thought
that two months constituted reasonable time.
Over two years having elapsed since the
decision aforesaid was promulgated, the
Government has not found ways and means of
removing the petitioner out of the country, and
none are in sight, although, it should be said in
justice to the deportation authorities, it was
through no fault of theirs that no ship or country
would take the petitioner.
Aliens illegally staying in the Philippines have
no right of asylum therein (Soewapadji v.
Wixon, Sept. 13, 1946, 157 F. ed., 289, 290),
even if they are "stateless," which the petitioner
claims to be. It is no less true however as
impliedly stated in this Court’s decision, supra,
and numerous American decisons, that foreign
nationals, not enemy, against whom no
criminal charges have been formally made or
judicial order issued, may not indefinitely be
kept in detention. The protection against
 HUMAN RIGHTS PRELIMFULLTEXT CASES
deprivation of liberty without due process of law
and except for crimes committed against the
laws of the land is not limited to Philippine
citizens but extends to all residents, except
enemy aliens, regardless of nationality.
Whether an alien who entered the country in
violation of its immigration laws may be
detained for as long as the Government is
unable to deport him, is beside the point and
we need not decide. There is no allegation that
the petitioner’s entry into the Philippines was
not lawful; on the contrary, the inference from
the pleadings and the Deportation Board’s
findings is that he came to and lived in this
country under legal permit.
Moroever, by its Constitution (Art. II, sec. 3) the
Philippines "adopts the generally accepted
principles of international law as part of the law
of Nation." And in a resolution entitled
"Universal Declaration of Human Rights" and
approved by the General Assembly of the
United Nations of which the Philippines is a
member, at its plenary meeting on December
10, 1948, the right to life and liberty and all
other fundamental rights as applied to all
human beings were proclaimed. It was there
resolved that "All human beings are born free
and equal in degree and rights" (Art. 1); that
"Everyone is entitled to all the rights and
freedom set forth in this Declaration, without
distinction of any kind, such as race, colour,
sex, language, religion, political or other
opinion, nationality or social origin, property,
birth, or other status (Art. 2); that "Everyone
has the right to an effective remedy by the
competent national tribunals for acts violating
the fundamental rights granted him by the
Constitution or by law" (Art. 8); that "No one
shall be subjected to arbitrary arrest, detention
or exile" (Art. 9); etc.
In U. S. v. Nichols, 47 Fed. Supp., 201, it was
said that the court "has the power to release
from custody an alien who has been detained
an unreasonably long period of time by the
Department of Justice after it has become
apparent that although a warrant for his
deportation has been issued, the warrant can
not be effectuated;" that "the theory on which
the court is given the power to act is that the
warrant of deportation, not having been able to
be executed, is functus officio and the alien is
being held without any authority of law." The
decision cited several cases which, it said,
settled the matter definitely in that jurisdiction,
adding that the same result had been reached
in innumerable cases elsewhere. The cases
referred to were United States ex rel. Ross v.
Wallis, 2 Cir. 279 F. 401, 404; Caranica v.
Nagle, 9 Cir., 28 F. 2d 955; Saksagansky v.
Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph;
Ex parte Matthews, D.C.W.D. Wash., 277 F.
857; Moraitis v. Delany, D.C. Md. Aug. 28,
1942, 46 F. Supp. 425.
The most recent case, as far as we have been
able to find, was that of Staniszewski v.
Watkins (1948), 80 Fed. Supp. 132, which is
nearly foursquare with the case at hand. In that
case a stateless person, formerly a Polish
national, resident in the United States since
1911 and many times serving as a seaman on
American vessels both in peace and in war,
was ordered excluded from the United States
and detained at Ellis Island at the expense of
the steamship company, when he returned
from a voyage on which he had shipped from
New York for one or more European ports and
return to the United States. The grounds for his
exclusion were that he had no passport or
immigration visa, and that in 1937 had been
convicted of perjury because in certain
documents he represented himself to be an
American citizen. Upon his application for
release on habeas corpus, the Court released
him upon his own recognizance. Judge Leibell,
of the United States District Court for the
Southern District of New York, said in
part:jgc:chanrobles.com.ph
"When the return to the writ of habeas
corpus came before this court, I suggested that
all interested parties . . . make an effort to
arrange to have the petitioner ship out to some
country that would receive him as a resident.
He is a native-born Pole but the Polish Consul
has advised him in writing that he is no longer
a Polish subject. This Government does not
claim that he is a Polish citizen. His attorney
says he is stateless. The Government is willing
that he go back to the ship, but if he were sent
back aboard ship and sailed to the port
(Cherbourg, France) from which he last sailed
to the United States he would probably be
denied permission to land. There is no other
country that would take him, without proper
documents.
"It seems to me that this is a genuine hardship
case and that the petitioner should be released
from custody on proper terms . . .
"What is to be done with the petitioner? The
government has had him in custody almost
seven months and practically admits it has no
place to send him out of this country. The
steamship company, which employed him as
one of a group sent to the ship by the Union,
with proper seaman’s papers issued by the
United States Coast Guard, is paying $3.00 a
day for petitioner’s board at Ellis Island. It is no
 HUMAN RIGHTS PRELIMFULLTEXT CASES
fault of the steamship company that petitioner
is an inadmissible alien as the immigration
officials describe him . . . advocacy of violent overthrow of the United
"I intend to sustain the writ of habeas
corpus and order the release of the petitioner
on his own recognizance. He will be required to
inform the immigration officials at Ellis Island by
mail on the 15th of each month stating where
he is employed and where he can be reached
by mail. If the government does succeed in
arranging for petitioner’s deportation to a
country that will be ready to receive him as a
resident, it may then advise the petitioner to
that effect and arrange for his deportation in
the manner provided by law."cralaw virtua1aw
library
Although not binding upon this Court as a
precedent, the case aforecited offered a happy
solution to the quandary in which the parties
here find themselves, solution which we think is
sensible, sound and compatible with law and
the Constitution. For this reason, and since the
Philippine law on immigration was patterned
after or copied from the American law and
practice, we choose to follow and adopt the
reasoning and conclusions in the Staniszewski
decision with some modifications which, it is
believed, are in consonance with the prevailing
conditions of peace and order in the
Philippines.
It was said or insinuated at the hearing of the
petition at bar, but not alleged in the return, that
the petitioner was engaged in subversive
activities, and fear was expressed that he
might join or aid the disloyal elements if
allowed to be at large. Bearing in mind the
Government’s allegation in its answer that "the
herein petitioner was brought to the Philippines
by the Japanese forces," and the fact that
Japan is no longer at war with the United
States or the Philippines nor identified with the
countries allied against those nations, the
possibility of the petitioner’s entertaining or
committing hostile acts prejudicial to the
interest and security of this country seems
remote.
If we grant, for the sake of argument, that such
a possibility exists, still the petitioner’s unduly
prolonged detention would be unwarranted by
law and the Constitution, if the only purpose of
the detention be to eliminate a danger that is
by no means, actual, present, or
uncontrollable. After all, the Government is not
impotent to deal with or prevent any threat by
such measure as that just outlined. The
thought eloquently expressed by Mr. Justice
Jackson of the United States Supreme Court in
connection with the application for bail of ten
Communists convicted by a lower court of
States Government is, in principle pertinent
and may be availed of at this juncture. Said the
learned Jurist:jgc:chanrobles.com.ph
"The Government’s alternative contention is
that defendants, by misbehavior after
conviction, have forfeited their claim to bail.
Grave public danger is said to result from what
they may be expected to do, in addition to what
they have done since their conviction. If I
assume that defendants are disposed to
commit every opportune disloyal act helpful to
Communist countries, it is still difficult to
reconcile with traditional American law the
jailing of persons by the courts because of
anticipated but as yet uncommitted crimes.
Imprisonment to protect society from predicted
but unconsummated offenses is so
unprecedented in this country and so fraught
with danger of excesses and injustice that I am
loath to resort to it, even as a discretionary
judicial technique to supplement conviction of
such offenses as those of which defendants
stand convicted.
x       x       x
"But the right of every American to equal
treatment before the law is wrapped up in the
same constitutional bundle with those of these
Communists. If in anger or disgust with these
defendants we throw out the bundle, we also
cast aside protection for the liberties of more
worthy critics who may be in opposition to the
government of some future day.
x       x       x
"If, however, I were to be wrong on all of these
abstract or theoretical matters of principle,
there is a very practical aspect of this
application which must not be overlooked or
underestimated - that is the disastrous effect
on the reputation of American justice if I should
now send these men to jail and the full Court
later decide that their conviction is invalid. All
experience with litigation teaches that
existence of a substantial question about a
conviction implies a more than negligible risk of
reversal. Indeed this experience lies back of
our rule permitting and practice of allowing bail
where such questions exist, to avoid the
hazard of unjustifiably imprisoning persons with
consequent reproach to our system of justice. If
that is prudent judical practice in the ordinary
case, how much more important to avoid every
 HUMAN RIGHTS PRELIMFULLTEXT CASES
chance of handing to the Communist world
such an ideological weapon as it would have if
this country should imprison this handful of
Communist leaders on a conviction that our
own highest Court would confess to be illegal.
Risks, of course, are involved in either granting
or refusing bail. I am not naive enough to
underestimate the troublemaking propensities
of the defendants. But, with the Department of
Justice alert to the dangers, the worst they can
accomplish in the short time it will take to end
the litigation is preferable to the possibility of
national embarrassment from a celebrated
case of unjustified imprisonment of Communist
leaders. Under no circumstances must we G.R. No. 78742 July 14, 1989
permit their symbolization of an evil force in the
world to be hallowed and glorified by any ASSOCIATION OF SMALL LANDOWNERS
semblance of martyrdom. The way to avoid IN THE PHILIPPINES, INC., JUANITO D.
that risk is not to jail those men until it is finally GOMEZ, GERARDO B. ALARCIO, FELIPE A.
decided that they should stay jailed."cralaw GUICO, JR., BERNARDO M. ALMONTE,
virtua1aw library CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J.
If that case is not comparable with ours on the SALVA, REYNALDO G. ESTRADA, FELISA
issues presented, its underlying principle is of C. BAUTISTA, ESMENIA J. CABE,
universal application. In fact, its ratio decidendi TEODORO B. MADRIAGA, AUREA J.
applies with greater force to the present PRESTOSA, EMERENCIANA J. ISLA,
petition, since the right of accused to bail FELICISIMA C. ARRESTO, CONSUELO M.
pending appeal of his case, as in the case of MORALES, BENJAMIN R. SEGISMUNDO,
the ten Communists, depends upon the CIRILA A. JOSE & NAPOLEON S.
discretion of the court, whereas the right to be FERRER, petitioners,
enlarged before formal charges are instituted is vs.
absolute. As already noted, not only are there HONORABLE SECRETARY OF AGRARIAN
no charges pending against the petitioner, but REFORM, respondent.
the prospects of bringing any against him are
slim and remote. G.R. No. 79310 July 14, 1989

Premises considered, the writ will issue ARSENIO AL. ACUNA, NEWTON JISON,
commanding the respondents to release the VICTORINO FERRARIS, DENNIS JEREZA,
petitioner from custody upon these terms: The HERMINIGILDO GUSTILO, PAULINO D.
petitioner shall be placed under the TOLENTINO and PLANTERS' COMMITTEE,
surveillance of the immigration authorities or INC., Victorias Mill District, Victorias,
their agents in such form and manner as may Negros Occidental, petitioners,
be deemed adequate to insure that he keep vs.
peace and be available when the Government JOKER ARROYO, PHILIP E. JUICO and
is ready to deport him. The surveillance shall PRESIDENTIAL AGRARIAN REFORM
be reasonable and the question of COUNCIL, respondents.
reasonableness shall be submitted to this
Court or to the Court of First Instance of Manila G.R. No. 79744 July 14, 1989
for decision in case of abuse. He shall also put
up a bond for the above purpose in the amount INOCENTES PABICO, petitioner,
of P5,000.00 with sufficient surety or sureties, vs.
which bond the Commissioner of Immigration is HON. PHILIP E. JUICO, SECRETARY OF
authorized to exact by Section 40 of THE DEPARTMENT OF AGRARIAN
Commonwealth Act No. 613. No costs will be REFORM, HON. JOKER ARROYO,
charged. EXECUTIVE SECRETARY OF THE OFFICE
OF THE PRESIDENT, and Messrs.
Paras, C.J., Feria, Bengzon, Padilla and SALVADOR TALENTO, JAIME ABOGADO,
Reyes, JJ., concur. CONRADO AVANCENA and ROBERTO
TAAY, respondents.
Jugo, J., concurs in the result.
G.R. No. 79777 July 14, 1989
 HUMAN RIGHTS PRELIMFULLTEXT CASES
NICOLAS S. MANAAY and AGUSTIN
HERMANO, JR., petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of
Agrarian Reform, and LAND BANK OF THE
PHILIPPINES, respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible
giant who blocked and challenged Hercules for
his life on his way to Mycenae after performing
his eleventh labor. The two wrestled mightily
and Hercules flung his adversary to the ground
thinking him dead, but Antaeus rose even
stronger to resume their struggle. This
happened several times to Hercules' increasing
amazement. Finally, as they continued
grappling, it dawned on Hercules that Antaeus
was the son of Gaea and could never die as
long as any part of his body was touching his
Mother Earth. Thus forewarned, Hercules then
held Antaeus up in the air, beyond the reach of
the sustaining soil, and crushed him to death.
Mother Earth. The sustaining soil. The giver of
life, without whose invigorating touch even the
powerful Antaeus weakened and died.
The cases before us are not as fanciful as the
foregoing tale. But they also tell of the
elemental forces of life and death, of men and
women who, like Antaeus need the sustaining
strength of the precious earth to stay alive.
"Land for the Landless" is a slogan that
underscores the acute imbalance in the
distribution of this precious resource among
our people. But it is more than a slogan.
Through the brooding centuries, it has become
a battle-cry dramatizing the increasingly urgent
demand of the dispossessed among us for a
plot of earth as their place in the sun.
Recognizing this need, the Constitution in 1935
mandated the policy of social justice to "insure
the well-being and economic security of all the
people," 1 especially the less privileged. In
1973, the new Constitution affirmed this goal
adding specifically that "the State shall regulate
the acquisition, ownership, use, enjoyment and
disposition of private property and equitably
diffuse property ownership and
2
profits."   Significantly, there was also the
specific injunction to "formulate and implement
an agrarian reform program aimed at
emancipating the tenant from the bondage of
the soil." 3
The Constitution of 1987 was not to be
outdone. Besides echoing these sentiments, it
also adopted one whole and separate Article
XIII on Social Justice and Human Rights,
containing grandiose but undoubtedly sincere
provisions for the uplift of the common people.
These include a call in the following words for
the adoption by the State of an agrarian reform
program:
SEC. 4. The State shall, by law,
undertake an agrarian reform
program founded on the right of
farmers and regular farmworkers,
who are landless, to own directly
or collectively the lands they till
or, in the case of other
farmworkers, to receive a just
share of the fruits thereof. To this
end, the State shall encourage
and undertake the just distribution
of all agricultural lands, subject to
such priorities and reasonable
retention limits as the Congress
may prescribe, taking into
account ecological,
developmental, or equity
considerations and subject to the
payment of just compensation. In
determining retention limits, the
State shall respect the right of
small landowners. The State shall
further provide incentives for
voluntary land-sharing.
Earlier, in fact, R.A. No. 3844, otherwise known
as the Agricultural Land Reform Code, had
already been enacted by the Congress of the
Philippines on August 8, 1963, in line with the
above-stated principles. This was substantially
superseded almost a decade later by P.D. No.
27, which was promulgated on October 21,
1972, along with martial law, to provide for the
compulsory acquisition of private lands for
distribution among tenant-farmers and to
specify maximum retention limits for
landowners.
The people power revolution of 1986 did not
change and indeed even energized the thrust
for agrarian reform. Thus, on July 17, 1987,
President Corazon C. Aquino issued E.O. No.
228, declaring full land ownership in favor of
the beneficiaries of P.D. No. 27 and providing
for the valuation of still unvalued lands covered
by the decree as well as the manner of their
payment. This was followed on July 22, 1987
by Presidential Proclamation No. 131,
instituting a comprehensive agrarian reform
program (CARP), and E.O. No. 229, providing
the mechanics for its implementation.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Subsequently, with its formal organization, the
revived Congress of the Philippines took over
legislative power from the President and
started its own deliberations, including
extensive public hearings, on the improvement
of the interests of farmers. The result, after
almost a year of spirited debate, was the
enactment of R.A. No. 6657, otherwise known
as the Comprehensive Agrarian Reform Law of
1988, which President Aquino signed on June
10, 1988. This law, while considerably
changing the earlier mentioned enactments,
nevertheless gives them suppletory effect
insofar as they are not inconsistent with its
provisions. 4
The above-captioned cases have been
consolidated because they involve common
legal questions, including serious challenges to
the constitutionality of the several measures
mentioned above. They will be the subject of
one common discussion and resolution, The
different antecedents of each case will require
separate treatment, however, and will first be
explained hereunder.
G.R. No. 79777
Squarely raised in this petition is the
constitutionality of P.D. No. 27, E.O. Nos. 228
and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare
riceland worked by four tenants and owned by
petitioner Nicolas Manaay and his wife and a 5-
hectare riceland worked by four tenants and
owned by petitioner Augustin Hermano, Jr. The
tenants were declared full owners of these
lands by E.O. No. 228 as qualified farmers
under P.D. No. 27.
The petitioners are questioning P.D. No. 27
and E.O. Nos. 228 and 229 on grounds inter
alia of separation of powers, due process,
equal protection and the constitutional
limitation that no private property shall be taken
for public use without just compensation.
They contend that President Aquino usurped
legislative power when she promulgated E.O.
No. 228. The said measure is invalid also for
violation of Article XIII, Section 4, of the
Constitution, for failure to provide for retention
limits for small landowners. Moreover, it does
not conform to Article VI, Section 25(4) and the
other requisites of a valid appropriation.
In connection with the determination of just
compensation, the petitioners argue that the
same may be made only by a court of justice
and not by the President of the Philippines.
They invoke the recent cases of EPZA v.
Dulay  5 and Manotok v. National Food
Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in
money or in cash and not in the form of bonds
or other things of value.
In considering the rentals as advance payment
on the land, the executive order also deprives
the petitioners of their property rights as
protected by due process. The equal protection
clause is also violated because the order
places the burden of solving the agrarian
problems on the owners only of agricultural
lands. No similar obligation is imposed on the
owners of other properties.
The petitioners also maintain that in declaring
the beneficiaries under P.D. No. 27 to be the
owners of the lands occupied by them, E.O.
No. 228 ignored judicial prerogatives and so
violated due process. Worse, the measure
would not solve the agrarian problem because
even the small farmers are deprived of their
lands and the retention rights guaranteed by
the Constitution.
In his Comment, the Solicitor General stresses
that P.D. No. 27 has already been upheld in
the earlier cases of Chavez v.
Zobel,  7 Gonzales v. Estrella,  8 and
Association of Rice and Corn Producers of the
Philippines, Inc. v. The National Land Reform
Council.  9 The determination of just
compensation by the executive authorities
conformably to the formula prescribed under
the questioned order is at best initial or
preliminary only. It does not foreclose judicial
intervention whenever sought or warranted. At
any rate, the challenge to the order is
premature because no valuation of their
property has as yet been made by the
Department of Agrarian Reform. The
petitioners are also not proper parties because
the lands owned by them do not exceed the
maximum retention limit of 7 hectares.
Replying, the petitioners insist they are proper
parties because P.D. No. 27 does not provide
for retention limits on tenanted lands and that
in any event their petition is a class suit brought
in behalf of landowners with landholdings
below 24 hectares. They maintain that the
determination of just compensation by the
administrative authorities is a final
ascertainment. As for the cases invoked by the
public respondent, the constitutionality of P.D.
No. 27 was merely assumed in Chavez, while
what was decided in Gonzales was the validity
of the imposition of martial law.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
In the amended petition dated November 22,
1588, it is contended that P.D. No. 27, E.O.
Nos. 228 and 229 (except Sections 20 and 21)
have been impliedly repealed by R.A. No.
6657. Nevertheless, this statute should itself
also be declared unconstitutional because it
suffers from substantially the same infirmities
as the earlier measures.
A petition for intervention was filed with leave
of court on June 1, 1988 by Vicente Cruz,
owner of a 1. 83- hectare land, who
complained that the DAR was insisting on the
implementation of P.D. No. 27 and E.O. No.
228 despite a compromise agreement he had
reached with his tenant on the payment of
rentals. In a subsequent motion dated April 10,
1989, he adopted the allegations in the basic
amended petition that the above- mentioned
enactments have been impliedly repealed by
R.A. No. 6657.
G.R. No. 79310
The petitioners herein are landowners and
sugar planters in the Victorias Mill District,
Victorias, Negros Occidental. Co-petitioner
Planters' Committee, Inc. is an organization
composed of 1,400 planter-members. This
petition seeks to prohibit the implementation of
Proc. No. 131 and E.O. No. 229.
The petitioners claim that the power to provide
for a Comprehensive Agrarian Reform Program
as decreed by the Constitution belongs to
Congress and not the President. Although they
agree that the President could exercise
legislative power until the Congress was
convened, she could do so only to enact
emergency measures during the transition
period. At that, even assuming that the interim
legislative power of the President was properly
exercised, Proc. No. 131 and E.O. No. 229
would still have to be annulled for violating the
constitutional provisions on just compensation,
due process, and equal protection.
They also argue that under Section 2 of Proc.
No. 131 which provides:
Agrarian Reform Fund.-There is hereby
created a special fund, to be known as the
Agrarian Reform Fund, an initial amount of
FIFTY BILLION PESOS (P50,000,000,000.00)
to cover the estimated cost of the
Comprehensive Agrarian Reform Program from
1987 to 1992 which shall be sourced from the
receipts of the sale of the assets of the Asset
Privatization Trust and Receipts of sale of ill-
gotten wealth received through the Presidential
Commission on Good Government and such
other sources as government may deem
appropriate. The amounts collected and
accruing to this special fund shall be
considered automatically appropriated for the
purpose authorized in this Proclamation the
amount appropriated is in futuro, not in esse.
The money needed to cover the cost of the
contemplated expropriation has yet to be
raised and cannot be appropriated at this time.
Furthermore, they contend that taking must be
simultaneous with payment of just
compensation as it is traditionally understood,
i.e., with money and in full, but no such
payment is contemplated in Section 5 of the
E.O. No. 229. On the contrary, Section 6,
thereof provides that the Land Bank of the
Philippines "shall compensate the landowner in
an amount to be established by the
government, which shall be based on the
owner's declaration of current fair market value
as provided in Section 4 hereof, but subject to
certain controls to be defined and promulgated
by the Presidential Agrarian Reform Council."
This compensation may not be paid fully in
money but in any of several modes that may
consist of part cash and part bond, with
interest, maturing periodically, or direct
payment in cash or bond as may be mutually
agreed upon by the beneficiary and the
landowner or as may be prescribed or
approved by the PARC.
The petitioners also argue that in the issuance
of the two measures, no effort was made to
make a careful study of the sugar planters'
situation. There is no tenancy problem in the
sugar areas that can justify the application of
the CARP to them. To the extent that the sugar
planters have been lumped in the same
legislation with other farmers, although they are
a separate group with problems exclusively
their own, their right to equal protection has
been violated.
A motion for intervention was filed on August
27,1987 by the National Federation of
Sugarcane Planters (NASP) which claims a
membership of at least 20,000 individual sugar
planters all over the country. On September 10,
1987, another motion for intervention was filed,
this time by Manuel Barcelona, et al.,
representing coconut and riceland owners.
Both motions were granted by the Court.
NASP alleges that President Aquino had no
authority to fund the Agrarian Reform Program
and that, in any event, the appropriation is
invalid because of uncertainty in the amount
appropriated. Section 2 of Proc. No. 131 and
Sections 20 and 21 of E.O. No. 229 provide for
 HUMAN RIGHTS PRELIMFULLTEXT CASES
an initial appropriation of fifty billion pesos and
thus specifies the minimum rather than the
maximum authorized amount. This is not
allowed. Furthermore, the stated initial amount
has not been certified to by the National
Treasurer as actually available.
Two additional arguments are made by
Barcelona, to wit, the failure to establish by
clear and convincing evidence the necessity for
the exercise of the powers of eminent domain,
and the violation of the fundamental right to
own property.
The petitioners also decry the penalty for non-
registration of the lands, which is the
expropriation of the said land for an amount
equal to the government assessor's valuation
of the land for tax purposes. On the other hand,
if the landowner declares his own valuation he
is unjustly required to immediately pay the
corresponding taxes on the land, in violation of
the uniformity rule.
In his consolidated Comment, the Solicitor
General first invokes the presumption of
constitutionality in favor of Proc. No. 131 and
E.O. No. 229. He also justifies the necessity for
the expropriation as explained in the "whereas"
clauses of the Proclamation and submits that,
contrary to the petitioner's contention, a pilot
project to determine the feasibility of CARP and
a general survey on the people's opinion
thereon are not indispensable prerequisites to
its promulgation.
On the alleged violation of the equal protection
clause, the sugar planters have failed to show
that they belong to a different class and should
be differently treated. The Comment also
suggests the possibility of Congress first
distributing public agricultural lands and
scheduling the expropriation of private
agricultural lands later. From this viewpoint, the
petition for prohibition would be premature.
The public respondent also points out that the
constitutional prohibition is against the payment
of public money without the corresponding
appropriation. There is no rule that only money
already in existence can be the subject of an
appropriation law. Finally, the earmarking of
fifty billion pesos as Agrarian Reform Fund,
although denominated as an initial amount, is
actually the maximum sum appropriated. The
word "initial" simply means that additional
amounts may be appropriated later when
necessary.
On April 11, 1988, Prudencio Serrano, a
coconut planter, filed a petition on his own
behalf, assailing the constitutionality of E.O.
No. 229. In addition to the arguments already
raised, Serrano contends that the measure is
unconstitutional because:
(1) Only public lands should be
included in the CARP;
(2) E.O. No. 229 embraces more
than one subject which is not
expressed in the title;
(3) The power of the President to
legislate was terminated on July
2, 1987; and
(4) The appropriation of a P50
billion special fund from the
National Treasury did not
originate from the House of
Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary
of Department of Agrarian Reform, in violation
of due process and the requirement for just
compensation, placed his landholding under
the coverage of Operation Land Transfer.
Certificates of Land Transfer were
subsequently issued to the private
respondents, who then refused payment of
lease rentals to him.
On September 3, 1986, the petitioner protested
the erroneous inclusion of his small landholding
under Operation Land transfer and asked for
the recall and cancellation of the Certificates of
Land Transfer in the name of the private
respondents. He claims that on December 24,
1986, his petition was denied without hearing.
On February 17, 1987, he filed a motion for
reconsideration, which had not been acted
upon when E.O. Nos. 228 and 229 were
issued. These orders rendered his motion moot
and academic because they directly effected
the transfer of his land to the private
respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were
invalidly issued by the President
of the Philippines.
(2) The said executive orders are
violative of the constitutional
provision that no private property
shall be taken without due
process or just compensation.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
(3) The petitioner is denied the
right of maximum retention
provided for under the 1987
Constitution.
The petitioner contends that the issuance of
E.0. Nos. 228 and 229 shortly before Congress
convened is anomalous and arbitrary, besides
violating the doctrine of separation of powers.
The legislative power granted to the President
under the Transitory Provisions refers only to
emergency measures that may be promulgated
in the proper exercise of the police power.
The petitioner also invokes his rights not to be
deprived of his property without due process of
law and to the retention of his small parcels of
riceholding as guaranteed under Article XIII,
Section 4 of the Constitution. He likewise
argues that, besides denying him just
compensation for his land, the provisions of
E.O. No. 228 declaring that:
Lease rentals paid to the
landowner by the farmer-
beneficiary after October 21,
1972 shall be considered as
advance payment for the land.
is an unconstitutional taking of a vested
property right. It is also his contention that the
inclusion of even small landowners in the
program along with other landowners with
lands consisting of seven hectares or more is
undemocratic.
In his Comment, the Solicitor General submits
that the petition is premature because the
motion for reconsideration filed with the
Minister of Agrarian Reform is still unresolved.
As for the validity of the issuance of E.O. Nos.
228 and 229, he argues that they were enacted
pursuant to Section 6, Article XVIII of the
Transitory Provisions of the 1987 Constitution
which reads:
The incumbent president shall continue to
exercise legislative powers until the first
Congress is convened.
On the issue of just compensation, his position
is that when P.D. No. 27 was promulgated on
October 21. 1972, the tenant-farmer of
agricultural land was deemed the owner of the
land he was tilling. The leasehold rentals paid
after that date should therefore be considered
amortization payments.
In his Reply to the public respondents, the
petitioner maintains that the motion he filed
was resolved on December 14, 1987. An
appeal to the Office of the President would be
useless with the promulgation of E.O. Nos. 228
and 229, which in effect sanctioned the validity
of the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of
retention granted by P.D. No. 27 to owners of
rice and corn lands not exceeding seven
hectares as long as they are cultivating or
intend to cultivate the same. Their respective
lands do not exceed the statutory limit but are
occupied by tenants who are actually
cultivating such lands.
According to P.D. No. 316, which was
promulgated in implementation of P.D. No. 27:
No tenant-farmer in agricultural
lands primarily devoted to rice
and corn shall be ejected or
removed from his farmholding
until such time as the respective
rights of the tenant- farmers and
the landowner shall have been
determined in accordance with
the rules and regulations
implementing P.D. No. 27.
The petitioners claim they cannot eject their
tenants and so are unable to enjoy their right of
retention because the Department of Agrarian
Reform has so far not issued the implementing
rules required under the above-quoted decree.
They therefore ask the Court for a writ of
mandamus to compel the respondent to issue
the said rules.
In his Comment, the public respondent argues
that P.D. No. 27 has been amended by LOI
474 removing any right of retention from
persons who own other agricultural lands of
more than 7 hectares in aggregate area or
lands used for residential, commercial,
industrial or other purposes from which they
derive adequate income for their family. And
even assuming that the petitioners do not fall
under its terms, the regulations implementing
P.D. No. 27 have already been issued, to wit,
the Memorandum dated July 10, 1975 (Interim
Guidelines on Retention by Small Landowners,
with an accompanying Retention Guide Table),
Memorandum Circular No. 11 dated April 21,
1978, (Implementation Guidelines of LOI No.
474), Memorandum Circular No. 18-81 dated
December 29,1981 (Clarificatory Guidelines on
Coverage of P.D. No. 27 and Retention by
Small Landowners), and DAR Administrative
Order No. 1, series of 1985 (Providing for a
Cut-off Date for Landowners to Apply for
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Retention and/or to Protest the Coverage of
their Landholdings under Operation Land
Transfer pursuant to P.D. No. 27). For failure to
file the corresponding applications for retention
under these measures, the petitioners are now
barred from invoking this right.
The public respondent also stresses that the
petitioners have prematurely initiated this case
notwithstanding the pendency of their appeal to
the President of the Philippines. Moreover, the
issuance of the implementing rules, assuming
this has not yet been done, involves the
exercise of discretion which cannot be
controlled through the writ of mandamus. This
is especially true if this function is entrusted, as
in this case, to a separate department of the
government.
In their Reply, the petitioners insist that the
above-cited measures are not applicable to
them because they do not own more than
seven hectares of agricultural land. Moreover,
assuming arguendo that the rules were
intended to cover them also, the said measures
are nevertheless not in force because they
have not been published as required by law
and the ruling of this Court in Tanada v.
Tuvera.10 As for LOI 474, the same is
ineffective for the additional reason that a mere
letter of instruction could not have repealed the
presidential decree.
I several executive orders issued by President
Although holding neither purse nor sword and
so regarded as the weakest of the three
departments of the government, the judiciary is
nonetheless vested with the power to annul the
acts of either the legislative or the executive or
of both when not conformable to the
fundamental law. This is the reason for what
some quarters call the doctrine of judicial
supremacy. Even so, this power is not lightly
assumed or readily exercised. The doctrine of
separation of powers imposes upon the courts
a proper restraint, born of the nature of their
functions and of their respect for the other
departments, in striking down the acts of the
legislative and the executive as
unconstitutional. The policy, indeed, is a blend
of courtesy and caution. To doubt is to sustain.
The theory is that before the act was done or
the law was enacted, earnest studies were
made by Congress or the President, or both, to
insure that the Constitution would not be
breached.
In addition, the Constitution itself lays down
stringent conditions for a declaration of
unconstitutionality, requiring therefor the
concurrence of a majority of the members of
the Supreme Court who took part in the
deliberations and voted on the issue during
their session en banc.11 And as established by
judge made doctrine, the Court will assume
jurisdiction over a constitutional question only if
it is shown that the essential requisites of a
judicial inquiry into such a question are first
satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights
susceptible of judicial determination, the
constitutional question must have been
opportunely raised by the proper party, and the
resolution of the question is unavoidably
necessary to the decision of the case itself. 12
With particular regard to the requirement of
proper party as applied in the cases before us,
we hold that the same is satisfied by the
petitioners and intervenors because each of
them has sustained or is in danger of
sustaining an immediate injury as a result of
the acts or measures complained of. 13 And
even if, strictly speaking, they are not covered
by the definition, it is still within the wide
discretion of the Court to waive the requirement
and so remove the impediment to its
addressing and resolving the serious
constitutional questions raised.
In the first Emergency Powers
14
Cases,   ordinary citizens and taxpayers were
allowed to question the constitutionality of
Quirino although they were invoking only an
indirect and general interest shared in common
with the public. The Court dismissed the
objection that they were not proper parties and
ruled that "the transcendental importance to
the public of these cases demands that they be
settled promptly and definitely, brushing aside,
if we must, technicalities of procedure." We
have since then applied this exception in many
other cases. 15
The other above-mentioned requisites have
also been met in the present petitions.
In must be stressed that despite the inhibitions
pressing upon the Court when confronted with
constitutional issues like the ones now before
it, it will not hesitate to declare a law or act
invalid when it is convinced that this must be
done. In arriving at this conclusion, its only
criterion will be the Constitution as God and its
conscience give it the light to probe its meaning
and discover its purpose. Personal motives and
political considerations are irrelevancies that
cannot influence its decision. Blandishment is
as ineffectual as intimidation.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
For all the awesome power of the Congress
and the Executive, the Court will not hesitate to
"make the hammer fall, and heavily," to use
Justice Laurel's pithy language, where the acts
of these departments, or of any public official,
betray the people's will as expressed in the
Constitution.
It need only be added, to borrow again the
words of Justice Laurel, that —
... when the judiciary mediates to
allocate constitutional
boundaries, it does not assert any
superiority over the other
departments; it does not in reality
nullify or invalidate an act of the
Legislature, but only asserts the
solemn and sacred obligation
assigned to it by the Constitution
to determine conflicting claims of
authority under the Constitution
and to establish for the parties in
an actual controversy the rights
which that instrument secures
and guarantees to them. This is
in truth all that is involved in what
is termed "judicial supremacy"
which properly is the power of
judicial review under the
Constitution. 16
The cases before us categorically raise
constitutional questions that this Court must
categorically resolve. And so we shall.
II
We proceed first to the examination of the
preliminary issues before resolving the more
serious challenges to the constitutionality of the
several measures involved in these petitions.
The promulgation of P.D. No. 27 by President
Marcos in the exercise of his powers under
martial law has already been sustained
in Gonzales v. Estrella and we find no reason
to modify or reverse it on that issue. As for the
power of President Aquino to promulgate Proc.
No. 131 and E.O. Nos. 228 and 229, the same
was authorized under Section 6 of the
Transitory Provisions of the 1987 Constitution,
quoted above.
The said measures were issued by President
Aquino before July 27, 1987, when the
Congress of the Philippines was formally
convened and took over legislative power from
her. They are not "midnight" enactments
intended to pre-empt the legislature because
E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and
E.O. No. 229, were both issued on July 22,
1987. Neither is it correct to say that these
measures ceased to be valid when she lost her
legislative power for, like any statute, they
continue to be in force unless modified or
repealed by subsequent law or declared invalid
by the courts. A statute does not ipso
facto become inoperative simply because of
the dissolution of the legislature that enacted it.
By the same token, President Aquino's loss of
legislative power did not have the effect of
invalidating all the measures enacted by her
when and as long as she possessed it.
Significantly, the Congress she is alleged to
have undercut has not rejected but in fact
substantially affirmed the challenged measures
and has specifically provided that they shall be
suppletory to R.A. No. 6657 whenever not
inconsistent with its provisions. 17 Indeed, some
portions of the said measures, like the creation
of the P50 billion fund in Section 2 of Proc. No.
131, and Sections 20 and 21 of E.O. No. 229,
have been incorporated by reference in the
CARP Law. 18
That fund, as earlier noted, is itself being
questioned on the ground that it does not
conform to the requirements of a valid
appropriation as specified in the Constitution.
Clearly, however, Proc. No. 131 is not an
appropriation measure even if it does provide
for the creation of said fund, for that is not its
principal purpose. An appropriation law is one
the primary and specific purpose of which is to
authorize the release of public funds from the
treasury. 19 The creation of the fund is only
incidental to the main objective of the
proclamation, which is agrarian reform.
It should follow that the specific constitutional
provisions invoked, to wit, Section 24 and
Section 25(4) of Article VI, are not applicable.
With particular reference to Section 24, this
obviously could not have been complied with
for the simple reason that the House of
Representatives, which now has the exclusive
power to initiate appropriation measures, had
not yet been convened when the proclamation
was issued. The legislative power was then
solely vested in the President of the
Philippines, who embodied, as it were, both
houses of Congress.
The argument of some of the petitioners that
Proc. No. 131 and E.O. No. 229 should be
invalidated because they do not provide for
retention limits as required by Article XIII,
Section 4 of the Constitution is no longer
tenable. R.A. No. 6657 does provide for such
 HUMAN RIGHTS PRELIMFULLTEXT CASES
limits now in Section 6 of the law, which in fact
is one of its most controversial provisions. This
section declares:
Retention Limits. — Except as
otherwise provided in this Act, no
person may own or retain, directly
or indirectly, any public or private
agricultural land, the size of which
shall vary according to factors
governing a viable family-sized
farm, such as commodity
produced, terrain, infrastructure,
and soil fertility as determined by
the Presidential Agrarian Reform
Council (PARC) created
hereunder, but in no case shall
retention by the landowner
exceed five (5) hectares. Three
(3) hectares may be awarded to
each child of the landowner,
subject to the following
qualifications: (1) that he is at
least fifteen (15) years of age;
and (2) that he is actually tilling
the land or directly managing the
farm; Provided, That landowners
whose lands have been covered
by Presidential Decree No. 27
shall be allowed to keep the area
originally retained by them
thereunder, further, That original
homestead grantees or direct
compulsory heirs who still own
the original homestead at the
time of the approval of this Act
shall retain the same areas as
long as they continue to cultivate
said homestead.
The argument that E.O. No. 229 violates the
constitutional requirement that a bill shall have
only one subject, to be expressed in its title,
deserves only short attention. It is settled that
the title of the bill does not have to be a
catalogue of its contents and will suffice if the
matters embodied in the text are relevant to
each other and may be inferred from the title. 20
The Court wryly observes that during the past
dictatorship, every presidential issuance, by
whatever name it was called, had the force and
effect of law because it came from President
Marcos. Such are the ways of despots. Hence,
it is futile to argue, as the petitioners do in G.R.
No. 79744, that LOI 474 could not have
repealed P.D. No. 27 because the former was
only a letter of instruction. The important thing
is that it was issued by President Marcos,
whose word was law during that time.
But for all their peremptoriness, these
issuances from the President Marcos still had
to comply with the requirement for publication
as this Court held in Tanada v.
Tuvera. 21 Hence, unless published in the
Official Gazette in accordance with Article 2 of
the Civil Code, they could not have any force
and effect if they were among those
enactments successfully challenged in that
case. LOI 474 was published, though, in the
Official Gazette dated November 29,1976.)
Finally, there is the contention of the public
respondent in G.R. No. 78742 that the writ of
mandamus cannot issue to compel the
performance of a discretionary act, especially
by a specific department of the government.
That is true as a general proposition but is
subject to one important qualification. Correctly
and categorically stated, the rule is that
mandamus will lie to compel the discharge of
the discretionary duty itself but not to control
the discretion to be exercised. In other words,
mandamus can issue to require action only but
not specific action.
Whenever a duty is imposed
upon a public official and an
unnecessary and unreasonable
delay in the exercise of such duty
occurs, if it is a clear duty
imposed by law, the courts will
intervene by the extraordinary
legal remedy of mandamus to
compel action. If the duty is
purely ministerial, the courts will
require specific action. If the duty
is purely discretionary, the courts
by mandamus will require action
only. For example, if an inferior
court, public official, or board
should, for an unreasonable
length of time, fail to decide a
particular question to the great
detriment of all parties
concerned, or a court should
refuse to take jurisdiction of a
cause when the law clearly gave
it jurisdiction mandamus will
issue, in the first case to require a
decision, and in the second to
require that jurisdiction be taken
of the cause. 22
And while it is true that as a rule the writ will not
be proper as long as there is still a plain,
speedy and adequate remedy available from
the administrative authorities, resort to the
courts may still be permitted if the issue raised
is a question of law. 23
 HUMAN RIGHTS PRELIMFULLTEXT CASES
III
There are traditional distinctions between the
police power and the power of eminent domain
that logically preclude the application of both
powers at the same time on the same subject.
In the case of City of Baguio v. NAWASA, 24 for
example, where a law required the transfer of
all municipal waterworks systems to the
NAWASA in exchange for its assets of
equivalent value, the Court held that the power
being exercised was eminent domain because
the property involved was wholesome and
intended for a public use. Property condemned
under the police power is noxious or intended
for a noxious purpose, such as a building on
the verge of collapse, which should be
demolished for the public safety, or obscene
materials, which should be destroyed in the
interest of public morals. The confiscation of
such property is not compensable, unlike the
taking of property under the power of
expropriation, which requires the payment of
just compensation to the owner.
In the case of Pennsylvania Coal Co. v.
Mahon, 25 Justice Holmes laid down the limits
of the police power in a famous aphorism: "The
general rule at least is that while property may
be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking."
The regulation that went "too far" was a law
prohibiting mining which might cause the
subsidence of structures for human habitation
constructed on the land surface. This was
resisted by a coal company which had earlier
granted a deed to the land over its mine but
reserved all mining rights thereunder, with the
grantee assuming all risks and waiving any
damage claim. The Court held the law could
not be sustained without compensating the
grantor. Justice Brandeis filed a lone dissent in
which he argued that there was a valid
exercise of the police power. He said:
Every restriction upon the use of
property imposed in the exercise
of the police power deprives the
owner of some right theretofore
enjoyed, and is, in that sense, an
abridgment by the State of rights
in property without making
compensation. But restriction
imposed to protect the public
health, safety or morals from
dangers threatened is not a
taking. The restriction here in
question is merely the prohibition
of a noxious use. The property so
restricted remains in the
possession of its owner. The
state does not appropriate it or
make any use of it. The state
merely prevents the owner from
making a use which interferes
with paramount rights of the
public. Whenever the use
prohibited ceases to be noxious
— as it may because of further
changes in local or social
conditions — the restriction will
have to be removed and the
owner will again be free to enjoy
his property as heretofore.
Recent trends, however, would indicate not a
polarization but a mingling of the police power
and the power of eminent domain, with the
latter being used as an implement of the former
like the power of taxation. The employment of
the taxing power to achieve a police purpose
has long been accepted. 26 As for the power of
expropriation, Prof. John J. Costonis of the
University of Illinois College of Law (referring to
the earlier case of Euclid v. Ambler Realty Co.,
272 US 365, which sustained a zoning law
under the police power) makes the following
significant remarks:
Euclid, moreover, was decided in
an era when judges located the
Police and eminent domain
powers on different planets.
Generally speaking, they viewed
eminent domain as
encompassing public acquisition
of private property for
improvements that would be
available for public use," literally
construed. To the police power,
on the other hand, they assigned
the less intrusive task of
preventing harmful externalities a
point reflected in the Euclid
opinion's reliance on an analogy
to nuisance law to bolster its
support of zoning. So long as
suppression of a privately
authored harm bore a plausible
relation to some legitimate "public
purpose," the pertinent measure
need have afforded no
compensation whatever. With the
progressive growth of
government's involvement in land
use, the distance between the
two powers has contracted
considerably. Today government
often employs eminent domain
interchangeably with or as a
useful complement to the police
power-- a trend expressly
 HUMAN RIGHTS PRELIMFULLTEXT CASES
approved in the Supreme Court's
1954 decision in Berman v.
Parker, which broadened the
reach of eminent domain's "public
use" test to match that of the
police power's standard of "public
purpose." 27
The Berman case sustained a redevelopment
project and the improvement of blighted areas
in the District of Columbia as a proper exercise
of the police power. On the role of eminent
domain in the attainment of this purpose,
Justice Douglas declared:
If those who govern the District of
Columbia decide that the Nation's
Capital should be beautiful as
well as sanitary, there is nothing
in the Fifth Amendment that
stands in the way.
Once the object is within the
authority of Congress, the right to
realize it through the exercise of
eminent domain is clear.
For the power of eminent domain
is merely the means to the end. 28
In Penn Central Transportation Co. v. New
York City,  29 decided by a 6-3 vote in 1978, the
U.S Supreme Court sustained the respondent's
Landmarks Preservation Law under which the
owners of the Grand Central Terminal had not
been allowed to construct a multi-story office
building over the Terminal, which had been
designated a historic landmark. Preservation of
the landmark was held to be a valid objective of
the police power. The problem, however, was
that the owners of the Terminal would be
deprived of the right to use the airspace above
it although other landowners in the area could
do so over their respective properties. While
insisting that there was here no taking, the
Court nonetheless recognized certain
compensatory rights accruing to Grand Central
Terminal which it said would "undoubtedly
mitigate" the loss caused by the regulation.
This "fair compensation," as he called it, was
explained by Prof. Costonis in this wise:
In return for retaining the Terminal site in its
pristine landmark status, Penn Central was
authorized to transfer to neighboring properties
the authorized but unused rights accruing to
the site prior to the Terminal's designation as a
landmark — the rights which would have been
exhausted by the 59-story building that the city
refused to countenance atop the Terminal.
Prevailing bulk restrictions on neighboring sites
were proportionately relaxed, theoretically
enabling Penn Central to recoup its losses at
the Terminal site by constructing or selling to
others the right to construct larger, hence more
profitable buildings on the transferee sites. 30
The cases before us present no knotty
complication insofar as the question of
compensable taking is concerned. To the
extent that the measures under challenge
merely prescribe retention limits for
landowners, there is an exercise of the police
power for the regulation of private property in
accordance with the Constitution. But where, to
carry out such regulation, it becomes
necessary to deprive such owners of whatever
lands they may own in excess of the maximum
area allowed, there is definitely a taking under
the power of eminent domain for which
payment of just compensation is imperative.
The taking contemplated is not a mere
limitation of the use of the land. What is
required is the surrender of the title to and the
physical possession of the said excess and all
beneficial rights accruing to the owner in favor
of the farmer-beneficiary. This is definitely an
exercise not of the police power but of the
power of eminent domain.
Whether as an exercise of the police power or
of the power of eminent domain, the several
measures before us are challenged as violative
of the due process and equal protection
clauses.
The challenge to Proc. No. 131 and E.O. Nos.
228 and 299 on the ground that no retention
limits are prescribed has already been
discussed and dismissed. It is noted that
although they excited many bitter exchanges
during the deliberation of the CARP Law in
Congress, the retention limits finally agreed
upon are, curiously enough, not being
questioned in these petitions. We therefore do
not discuss them here. The Court will come to
the other claimed violations of due process in
connection with our examination of the
adequacy of just compensation as required
under the power of expropriation.
The argument of the small farmers that they
have been denied equal protection because of
the absence of retention limits has also
become academic under Section 6 of R.A. No.
6657. Significantly, they too have not
questioned the area of such limits. There is
also the complaint that they should not be
made to share the burden of agrarian reform,
an objection also made by the sugar planters
on the ground that they belong to a particular
class with particular interests of their own.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
However, no evidence has been submitted to
the Court that the requisites of a valid
classification have been violated.
Classification has been defined as the grouping
of persons or things similar to each other in
certain particulars and different from each other
in these same particulars. 31 To be valid, it must
conform to the following requirements: (1) it
must be based on substantial distinctions; (2) it
must be germane to the purposes of the law;
(3) it must not be limited to existing conditions
only; and (4) it must apply equally to all the
members of the class. 32 The Court finds that
all these requisites have been met by the
measures here challenged as arbitrary and
discriminatory.
Equal protection simply means that all persons
or things similarly situated must be treated
alike both as to the rights conferred and the
liabilities imposed. 33 The petitioners have not
shown that they belong to a different class and
entitled to a different treatment. The argument
that not only landowners but also owners of
other properties must be made to share the
burden of implementing land reform must be
rejected. There is a substantial distinction
between these two classes of owners that is
clearly visible except to those who will not see.
There is no need to elaborate on this matter. In
any event, the Congress is allowed a wide
leeway in providing for a valid classification. Its
decision is accorded recognition and respect
by the courts of justice except only where its
discretion is abused to the detriment of the Bill
of Rights.
It is worth remarking at this juncture that a
statute may be sustained under the police
power only if there is a concurrence of the
lawful subject and the lawful method. Put
otherwise, the interests of the public generally
as distinguished from those of a particular
class require the interference of the State and,
no less important, the means employed are
reasonably necessary for the attainment of the
purpose sought to be achieved and not unduly
oppressive upon individuals. 34 As the subject
and purpose of agrarian reform have been laid
down by the Constitution itself, we may say
that the first requirement has been satisfied.
What remains to be examined is the validity of
the method employed to achieve the
constitutional goal.
One of the basic principles of the democratic
system is that where the rights of the individual
are concerned, the end does not justify the
means. It is not enough that there be a valid
objective; it is also necessary that the means
employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question
that not even the strongest moral conviction or
the most urgent public need, subject only to a
few notable exceptions, will excuse the
bypassing of an individual's rights. It is no
exaggeration to say that a, person invoking a
right guaranteed under Article III of the
Constitution is a majority of one even as
against the rest of the nation who would deny
him that right.
That right covers the person's life, his liberty
and his property under Section 1 of Article III of
the Constitution. With regard to his property,
the owner enjoys the added protection of
Section 9, which reaffirms the familiar rule that
private property shall not be taken for public
use without just compensation.
This brings us now to the power of eminent
domain.
IV
Eminent domain is an inherent
power of the State that enables it
to forcibly acquire private lands
intended for public use upon
payment of just compensation to
the owner. Obviously, there is no
need to expropriate where the
owner is willing to sell under
terms also acceptable to the
purchaser, in which case an
ordinary deed of sale may be
agreed upon by the parties. 35 It is
only where the owner is unwilling
to sell, or cannot accept the price
or other conditions offered by the
vendee, that the power of
eminent domain will come into
play to assert the paramount
authority of the State over the
interests of the property owner.
Private rights must then yield to
the irresistible demands of the
public interest on the time-
honored justification, as in the
case of the police power, that the
welfare of the people is the
supreme law.
But for all its primacy and urgency, the power
of expropriation is by no means absolute (as
indeed no power is absolute). The limitation is
found in the constitutional injunction that
"private property shall not be taken for public
use without just compensation" and in the
abundant jurisprudence that has evolved from
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the interpretation of this principle. Basically, the
requirements for a proper exercise of the
power are: (1) public use and (2) just
compensation.
Let us dispose first of the argument raised by
the petitioners in G.R. No. 79310 that the State
should first distribute public agricultural lands in
the pursuit of agrarian reform instead of
immediately disturbing property rights by
forcibly acquiring private agricultural lands.
Parenthetically, it is not correct to say that only
public agricultural lands may be covered by the
CARP as the Constitution calls for "the just
distribution of all agricultural lands." In any
event, the decision to redistribute private
agricultural lands in the manner prescribed by
the CARP was made by the legislative and
executive departments in the exercise of their
discretion. We are not justified in reviewing that
discretion in the absence of a clear showing
that it has been abused.
A becoming courtesy admonishes us to respect
the decisions of the political departments when
they decide what is known as the political
question. As explained by Chief Justice
Concepcion in the case of Tañada v.
Cuenco: 36
The term "political question"
connotes what it means in
ordinary parlance, namely, a
question of policy. It refers to
"those questions which, under the
Constitution, are to be decided by
the people in their sovereign
capacity; or in regard to which full
discretionary authority has been
delegated to the legislative or
executive branch of the
government." It is concerned with
issues dependent upon the
wisdom, not legality, of a
particular measure.
It is true that the concept of the political
question has been constricted with the
enlargement of judicial power, which now
includes the authority of the courts "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." 37 Even
so, this should not be construed as a license
for us to reverse the other departments simply
because their views may not coincide with
ours.
The legislature and the executive have been
seen fit, in their wisdom, to include in the
CARP the redistribution of private landholdings
(even as the distribution of public agricultural
lands is first provided for, while also continuing
apace under the Public Land Act and other
cognate laws). The Court sees no justification
to interpose its authority, which we may assert
only if we believe that the political decision is
not unwise, but illegal. We do not find it to be
so.
In U.S. v. Chandler-Dunbar Water Power
Company,38 it was held:
Congress having determined, as
it did by the Act of March 3,1909
that the entire St. Mary's river
between the American bank and
the international line, as well as
all of the upland north of the
present ship canal, throughout its
entire length, was "necessary for
the purpose of navigation of said
waters, and the waters connected
therewith," that determination is
conclusive in condemnation
proceedings instituted by the
United States under that Act, and
there is no room for judicial
review of the judgment of
Congress ... .
As earlier observed, the requirement for public
use has already been settled for us by the
Constitution itself No less than the 1987
Charter calls for agrarian reform, which is the
reason why private agricultural lands are to be
taken from their owners, subject to the
prescribed maximum retention limits. The
purposes specified in P.D. No. 27, Proc. No.
131 and R.A. No. 6657 are only an elaboration
of the constitutional injunction that the State
adopt the necessary measures "to encourage
and undertake the just distribution of all
agricultural lands to enable farmers who are
landless to own directly or collectively the lands
they till." That public use, as pronounced by the
fundamental law itself, must be binding on us.
The second requirement, i.e., the payment of
just compensation, needs a longer and more
thoughtful examination.
Just compensation is defined as the full and
fair equivalent of the property taken from its
owner by the expropriator. 39 It has been
repeatedly stressed by this Court that the
measure is not the taker's gain but the owner's
loss. 40 The word "just" is used to intensify the
meaning of the word "compensation" to convey
the idea that the equivalent to be rendered for
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the property to be taken shall be real,
substantial, full, ample. 41
It bears repeating that the measures
challenged in these petitions contemplate more
than a mere regulation of the use of private
lands under the police power. We deal here
with an actual taking of private agricultural
lands that has dispossessed the owners of
their property and deprived them of all its
beneficial use and enjoyment, to entitle them to
the just compensation mandated by the
Constitution.
As held in Republic of the Philippines v.
Castellvi, 42 there is compensable taking when
the following conditions concur: (1) the
expropriator must enter a private property; (2)
the entry must be for more than a momentary
period; (3) the entry must be under warrant or
color of legal authority; (4) the property must be
devoted to public use or otherwise informally
appropriated or injuriously affected; and (5) the
utilization of the property for public use must be
in such a way as to oust the owner and deprive
him of beneficial enjoyment of the property. All
these requisites are envisioned in the
measures before us.
Where the State itself is the expropriator, it is
not necessary for it to make a deposit upon its
taking possession of the condemned property,
as "the compensation is a public charge, the
good faith of the public is pledged for its
payment, and all the resources of taxation may
be employed in raising the
43
amount."   Nevertheless, Section 16(e) of the
CARP Law provides that:
Upon receipt by the landowner of
the corresponding payment or, in
case of rejection or no response
from the landowner, upon the
deposit with an accessible bank
designated by the DAR of the
compensation in cash or in LBP
bonds in accordance with this
Act, the DAR shall take
immediate possession of the land
and shall request the proper
Register of Deeds to issue a
Transfer Certificate of Title (TCT)
in the name of the Republic of the
Philippines. The DAR shall
thereafter proceed with the
redistribution of the land to the
qualified beneficiaries.
Objection is raised, however, to the manner of
fixing the just compensation, which it is claimed
is entrusted to the administrative authorities in
violation of judicial prerogatives. Specific
reference is made to Section 16(d), which
provides that in case of the rejection or
disregard by the owner of the offer of the
government to buy his land-
... the DAR shall conduct
summary administrative
proceedings to determine the
compensation for the land by
requiring the landowner, the LBP
and other interested parties to
submit evidence as to the just
compensation for the land, within
fifteen (15) days from the receipt
of the notice. After the expiration
of the above period, the matter is
deemed submitted for decision.
The DAR shall decide the case
within thirty (30) days after it is
submitted for decision.
To be sure, the determination of just
compensation is a function addressed to the
courts of justice and may not be usurped by
any other branch or official of the
government. EPZA v. Dulay 44 resolved a
challenge to several decrees promulgated by
President Marcos providing that the just
compensation for property under expropriation
should be either the assessment of the
property by the government or the sworn
valuation thereof by the owner, whichever was
lower. In declaring these decrees
unconstitutional, the Court held through Mr.
Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just
compensation under the
aforecited decrees constitutes
impermissible encroachment on
judicial prerogatives. It tends to
render this Court inutile in a
matter which under this
Constitution is reserved to it for
final determination.
Thus, although in an
expropriation proceeding the
court technically would still have
the power to determine the just
compensation for the property,
following the applicable decrees,
its task would be relegated to
simply stating the lower value of
the property as declared either by
the owner or the assessor. As a
necessary consequence, it would
be useless for the court to
appoint commissioners under
Rule 67 of the Rules of Court.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Moreover, the need to satisfy the
due process clause in the taking
of private property is seemingly
fulfilled since it cannot be said
that a judicial proceeding was not
had before the actual taking.
However, the strict application of
the decrees during the
proceedings would be nothing
short of a mere formality or
charade as the court has only to
choose between the valuation of
the owner and that of the
assessor, and its choice is always
limited to the lower of the two.
The court cannot exercise its
discretion or independence in
determining what is just or fair.
Even a grade school pupil could
substitute for the judge insofar as
the determination of constitutional
just compensation is concerned.
xxx
In the present petition, we are
once again confronted with the
same question of whether the
courts under P.D. No. 1533,
which contains the same
provision on just compensation
as its predecessor decrees, still
have the power and authority to
determine just compensation,
independent of what is stated by
the decree and to this effect, to
appoint commissioners for such
purpose.
This time, we answer in the
affirmative.
xxx
It is violative of due process to
deny the owner the opportunity to
prove that the valuation in the tax
documents is unfair or wrong.
And it is repulsive to the basic
concepts of justice and fairness
to allow the haphazard work of a
minor bureaucrat or clerk to
absolutely prevail over the
judgment of a court promulgated
only after expert commissioners
have actually viewed the
property, after evidence and
arguments pro and con have
been presented, and after all
factors and considerations
essential to a fair and just
determination have been
judiciously evaluated.
A reading of the aforecited Section 16(d) will
readily show that it does not suffer from the
arbitrariness that rendered the challenged
decrees constitutionally objectionable.
Although the proceedings are described as
summary, the landowner and other interested
parties are nevertheless allowed an opportunity
to submit evidence on the real value of the
property. But more importantly, the
determination of the just compensation by the
DAR is not by any means final and conclusive
upon the landowner or any other interested
party, for Section 16(f) clearly provides:
Any party who disagrees with the
decision may bring the matter to
the court of proper jurisdiction for
final determination of just
compensation.
The determination made by the DAR is only
preliminary unless accepted by all parties
concerned. Otherwise, the courts of justice will
still have the right to review with finality the said
determination in the exercise of what is
admittedly a judicial function.
The second and more serious objection to the
provisions on just compensation is not as
easily resolved.
This refers to Section 18 of the CARP Law
providing in full as follows:
SEC. 18. Valuation and Mode of
Compensation. — The LBP shall
compensate the landowner in
such amount as may be agreed
upon by the landowner and the
DAR and the LBP, in accordance
with the criteria provided for in
Sections 16 and 17, and other
pertinent provisions hereof, or as
may be finally determined by the
court, as the just compensation
for the land.
The compensation shall be paid
in one of the following modes, at
the option of the landowner:
(1) Cash payment, under the
following terms and conditions:
(a) For
lands
above
fifty
HUMAN RIGHTS PRELIMFULLTEXT CASES
(50) ments
hectar negoti
es, able at
insofar any
as the time.
exces
s (c) For
hectar lands
age is twenty
concer -four
ned — (24)
Twent hectar
y-five es and
perce below
nt —
(25%) Thirty-
cash, five
the perce
balanc nt
e to (35%)
be cash,
paid in the
gover balanc
nment e to
financi be
al paid in
instru gover
ments nment
negoti financi
able at al
any instru
time. ments
negoti
(b) For able at
lands any
above time.
twenty
-four (2) Shares of stock in
(24) government-owned or controlled
hectar corporations, LBP preferred
es and shares, physical assets or other
up to qualified investments in
fifty accordance with guidelines set by
(50) the PARC;
hectar
es — (3) Tax credits which can be used
Thirty against any tax liability;
perce
nt (4) LBP bonds, which shall have
(30%) the following features:
cash,
the (a)
balanc Marke
e to t
be interes
paid in t rates
gover aligne
nment d with
financi 91-
al day
instru treasu
HUMAN RIGHTS PRELIMFULLTEXT CASES
ry bill ability.
rates. Such
Ten LBP
perce bonds
nt may
(10%) be
of the used
face by the
value lando
of the wner,
bonds his
shall succe
matur ssors-
e in-
every interes
year t or his
from assign
the s, up
date to the
of amou
issuan nt of
ce their
until face
the value,
tenth for
(10th) any of
year: the
Provid followi
ed, ng:
That
should (i)
the Acquis
lando ition of
wner land
choos or
e to other
forego real
the proper
cash ties of
portio the
n, gover
wheth nment
er in ,
full or includi
in ng
part, assets
he under
shall the
be Asset
paid Privati
corres zation
pondin Progra
gly in m and
LBP other
bonds; assets
foreclo
(b) sed by
Transf gover
erabilit nment
y and financi
negoti al
HUMAN RIGHTS PRELIMFULLTEXT CASES
institut accus
ions in ed
the perso
same ns, or
provin for
ce or perfor
region mance
where bonds;
the
lands (iv)
for Securi
which ty for
the loans
bonds with
were any
paid gover
are nment
situate financi
d; al
institut
(ii) ion,
Acquis provid
ition of ed the
shares proce
of eds of
stock the
of loans
gover shall
nment be
- invest
owned ed in
or an
control econo
led mic
corpor enterp
ations rise,
or prefer
shares ably in
of a
stock small
owned and
by the mediu
gover m-
nment scale
in industr
private y, in
corpor the
ations; same
provin
(iii) ce or
Substi region
tution as the
for land
surety for
or bail which
bonds the
for the bonds
provisi are
onal paid;
releas
e of
HUMAN RIGHTS PRELIMFULLTEXT CASES
(v) iate
Paym family
ent for of the
variou origina
s l
taxes bondh
and older
fees to in
gover gover
nment nment
: univer
Provid sities,
ed, colleg
That es,
the trade
use of school
these s, and
bonds other
for institut
these ions;
purpo
ses (vii)
will be Paym
limited ent for
to a fees of
certain the
perce immed
ntage iate
of the family
outsta of the
nding origina
balanc l
e of bondh
the older
financi in
al gover
instru nment
ments; hospit
Provid als;
ed, and
further
, That (viii)
the Such
PARC other
shall uses
deter as the
mine PARC
the may
perce from
ntages time to
mentio time
ned allow.
above;
The contention of the petitioners in G.R. No.
(vi) 79777 is that the above provision is
Paym unconstitutional insofar as it requires the
ent for owners of the expropriated properties to accept
tuition just compensation therefor in less than money,
fees of which is the only medium of payment allowed.
the In support of this contention, they cite
immed jurisprudence holding that:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The fundamental rule in
expropriation matters is that the
owner of the property
expropriated is entitled to a just
compensation, which should be
neither more nor less, whenever
it is possible to make the
assessment, than the money
equivalent of said property. Just
compensation has always been
understood to be the just and
complete equivalent of the loss
which the owner of the thing
expropriated has to suffer by
reason of the
expropriation . 45 (Emphasis
supplied.)
In J.M. Tuazon Co. v. Land Tenure
Administration, 46 this Court held:
It is well-settled that just
compensation means the
equivalent for the value of the
property at the time of its taking.
Anything beyond that is more,
and anything short of that is less,
than just compensation. It means
a fair and full equivalent for the
loss sustained, which is the
measure of the indemnity, not
whatever gain would accrue to
the expropriating entity. The
market value of the land taken is
the just compensation to which
the owner of condemned property
is entitled, the market value being
that sum of money which a
person desirous, but not
compelled to buy, and an owner,
willing, but not compelled to sell,
would agree on as a price to be
given and received for such
property. (Emphasis supplied.)
In the United States, where much of our
jurisprudence on the subject has been derived,
the weight of authority is also to the effect that
just compensation for property expropriated is
payable only in money and not otherwise. Thus
— population but of the entire Filipino nation, from
The medium of payment of
compensation is ready money or
cash. The condemnor cannot
compel the owner to accept
anything but money, nor can the
owner compel or require the
condemnor to pay him on any
other basis than the value of the
property in money at the time and
in the manner prescribed by the
Constitution and the statutes.
When the power of eminent
domain is resorted to, there must
be a standard medium of
payment, binding upon both
parties, and the law has fixed that
standard as money in
cash. 47 (Emphasis supplied.)
Part cash and deferred payments
are not and cannot, in the nature
of things, be regarded as a
reliable and constant standard of
compensation. 48
"Just compensation" for property
taken by condemnation means a
fair equivalent in money, which
must be paid at least within a
reasonable time after the taking,
and it is not within the power of
the Legislature to substitute for
such payment future obligations,
bonds, or other valuable
49
advantage.   (Emphasis
supplied.)
It cannot be denied from these cases that the
traditional medium for the payment of just
compensation is money and no other. And so,
conformably, has just compensation been paid
in the past solely in that medium. However, we
do not deal here with the traditional excercise
of the power of eminent domain. This is not an
ordinary expropriation where only a specific
property of relatively limited area is sought to
be taken by the State from its owner for a
specific and perhaps local purpose.
What we deal with here is a revolutionary kind
of expropriation.
The expropriation before us affects all private
agricultural lands whenever found and of
whatever kind as long as they are in excess of
the maximum retention limits allowed their
owners. This kind of expropriation is intended
for the benefit not only of a particular
community or of a small segment of the
all levels of our society, from the impoverished
farmer to the land-glutted owner. Its purpose
does not cover only the whole territory of this
country but goes beyond in time to the
foreseeable future, which it hopes to secure
and edify with the vision and the sacrifice of the
present generation of Filipinos. Generations yet
to come are as involved in this program as we
are today, although hopefully only as
beneficiaries of a richer and more fulfilling life
 HUMAN RIGHTS PRELIMFULLTEXT CASES
we will guarantee to them tomorrow through
our thoughtfulness today. And, finally, let it not
be forgotten that it is no less than the
Constitution itself that has ordained this
revolution in the farms, calling for "a just
distribution" among the farmers of lands that
have heretofore been the prison of their
dreams but can now become the key at least to
their deliverance.
Such a program will involve not mere millions
of pesos. The cost will be tremendous.
Considering the vast areas of land subject to
expropriation under the laws before us, we
estimate that hundreds of billions of pesos will
be needed, far more indeed than the amount of
P50 billion initially appropriated, which is
already staggering as it is by our present
standards. Such amount is in fact not even fully
available at this time.
We assume that the framers of the Constitution
were aware of this difficulty when they called
for agrarian reform as a top priority project of
the government. It is a part of this assumption
that when they envisioned the expropriation
that would be needed, they also intended that
the just compensation would have to be paid
not in the orthodox way but a less conventional
if more practical method. There can be no
doubt that they were aware of the financial
limitations of the government and had no
illusions that there would be enough money to
pay in cash and in full for the lands they
wanted to be distributed among the farmers.
We may therefore assume that their intention
was to allow such manner of payment as is
now provided for by the CARP Law, particularly
the payment of the balance (if the owner
cannot be paid fully with money), or indeed of
the entire amount of the just compensation,
with other things of value. We may also
suppose that what they had in mind was a
similar scheme of payment as that prescribed
in P.D. No. 27, which was the law in force at
the time they deliberated on the new Charter
and with which they presumably agreed in
principle.
The Court has not found in the records of the
Constitutional Commission any categorical
agreement among the members regarding the
meaning to be given the concept of just
compensation as applied to the comprehensive
agrarian reform program being contemplated.
There was the suggestion to "fine tune" the
requirement to suit the demands of the project
even as it was also felt that they should "leave
it to Congress" to determine how payment
should be made to the landowner and
reimbursement required from the farmer-
beneficiaries. Such innovations as "progressive
compensation" and "State-subsidized
compensation" were also proposed. In the end,
however, no special definition of the just
compensation for the lands to be expropriated
was reached by the Commission. 50
On the other hand, there is nothing in the
records either that militates against the
assumptions we are making of the general
sentiments and intention of the members on
the content and manner of the payment to be
made to the landowner in the light of the
magnitude of the expenditure and the
limitations of the expropriator.
With these assumptions, the Court hereby
declares that the content and manner of the
just compensation provided for in the afore-
quoted Section 18 of the CARP Law is not
violative of the Constitution. We do not mind
admitting that a certain degree of pragmatism
has influenced our decision on this issue, but
after all this Court is not a cloistered institution
removed from the realities and demands of
society or oblivious to the need for its
enhancement. The Court is as acutely anxious
as the rest of our people to see the goal of
agrarian reform achieved at last after the
frustrations and deprivations of our peasant
masses during all these disappointing decades.
We are aware that invalidation of the said
section will result in the nullification of the
entire program, killing the farmer's hopes even
as they approach realization and resurrecting
the spectre of discontent and dissent in the
restless countryside. That is not in our view the
intention of the Constitution, and that is not
what we shall decree today.
Accepting the theory that payment of the just
compensation is not always required to be
made fully in money, we find further that the
proportion of cash payment to the other things
of value constituting the total payment, as
determined on the basis of the areas of the
lands expropriated, is not unduly oppressive
upon the landowner. It is noted that the smaller
the land, the bigger the payment in money,
primarily because the small landowner will be
needing it more than the big landowners, who
can afford a bigger balance in bonds and other
things of value. No less importantly, the
government financial instruments making up
the balance of the payment are "negotiable at
any time." The other modes, which are likewise
available to the landowner at his option, are
also not unreasonable because payment is
made in shares of stock, LBP bonds, other
properties or assets, tax credits, and other
 HUMAN RIGHTS PRELIMFULLTEXT CASES
things of value equivalent to the amount of just
compensation.
Admittedly, the compensation contemplated in
the law will cause the landowners, big and
small, not a little inconvenience. As already
remarked, this cannot be avoided.
Nevertheless, it is devoutly hoped that these
countrymen of ours, conscious as we know
they are of the need for their forebearance and
even sacrifice, will not begrudge us their
indispensable share in the attainment of the
ideal of agrarian reform. Otherwise, our pursuit
of this elusive goal will be like the quest for the
Holy Grail.
The complaint against the effects of non-
registration of the land under E.O. No. 229
does not seem to be viable any more as it
appears that Section 4 of the said Order has
been superseded by Section 14 of the CARP
Law. This repeats the requisites of registration
as embodied in the earlier measure but does
not provide, as the latter did, that in case of
failure or refusal to register the land, the
valuation thereof shall be that given by the
provincial or city assessor for tax purposes. On
the contrary, the CARP Law says that the just
compensation shall be ascertained on the
basis of the factors mentioned in its Section 17
and in the manner provided for in Section 16.
The last major challenge to CARP is that the
landowner is divested of his property even
before actual payment to him in full of just
compensation, in contravention of a well-
accepted principle of eminent domain.
The recognized rule, indeed, is that title to the
property expropriated shall pass from the
owner to the expropriator only upon full
payment of the just compensation.
Jurisprudence on this settled principle is
consistent both here and in other democratic
jurisdictions. Thus:
Title to property which is the subject of
condemnation proceedings does not vest the
condemnor until the judgment fixing just
compensation is entered and paid, but the
condemnor's title relates back to the date on
which the petition under the Eminent Domain
Act, or the commissioner's report under the
Local Improvement Act, is filed. 51
... although the right to appropriate and use
land taken for a canal is complete at the time of
entry, title to the property taken remains in the
owner until payment is actually
made. 52 (Emphasis supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme
Court cited several cases holding that title to
property does not pass to the condemnor until
just compensation had actually been made. In
fact, the decisions appear to be uniformly to
this effect. As early as 1838, in Rubottom v.
McLure, 54 it was held that "actual payment to
the owner of the condemned property was a
condition precedent to the investment of the
title to the property in the State" albeit "not to
the appropriation of it to public use." In Rexford
v. Knight, 55 the Court of Appeals of New York
said that the construction upon the statutes
was that the fee did not vest in the State until
the payment of the compensation although the
authority to enter upon and appropriate the
land was complete prior to the payment.
Kennedy further said that "both on principle
and authority the rule is ... that the right to enter
on and use the property is complete, as soon
as the property is actually appropriated under
the authority of law for a public use, but that
the title does not pass from the owner without
his consent, until just compensation has been
made to him."
Our own Supreme Court has held
in Visayan Refining Co. v. Camus and
Paredes,  56 that:
If the laws which we have
exhibited or cited in the preceding
discussion are attentively
examined it will be apparent that
the method of expropriation
adopted in this jurisdiction is such
as to afford absolute reassurance
that no piece of land can be
finally and irrevocably taken from
an unwilling owner until
compensation is
paid ... . (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the
emancipation of tenant-farmer as October 21,
1972 and declared that he shall "be deemed
the owner" of a portion of land consisting of a
family-sized farm except that "no title to the
land owned by him was to be actually issued to
him unless and until he had become a full-
fledged member of a duly recognized farmers'
cooperative." It was understood, however, that
full payment of the just compensation also had
to be made first, conformably to the
constitutional requirement.
When E.O. No. 228, categorically stated in its
Section 1 that:
All qualified farmer-beneficiaries
are now deemed full owners as of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
October 21, 1972 of the land they
acquired by virtue of Presidential
Decree No. 27. (Emphasis
supplied.)
it was obviously referring to lands already
validly acquired under the said decree, after
proof of full-fledged membership in the farmers'
cooperatives and full payment of just
compensation. Hence, it was also perfectly
proper for the Order to also provide in its
Section 2 that the "lease rentals paid to the
landowner by the farmer- beneficiary after
October 21, 1972 (pending transfer of
ownership after full payment of just
compensation), shall be considered as
advance payment for the land."
The CARP Law, for its part, conditions the
transfer of possession and ownership of the
land to the government on receipt by the
landowner of the corresponding payment or the
deposit by the DAR of the compensation in
cash or LBP bonds with an accessible bank.
Until then, title also remains with the
landowner. 57 No outright change of ownership
is contemplated either.
Hence, the argument that the assailed
measures violate due process by arbitrarily
transferring title before the land is fully paid for
must also be rejected.
It is worth stressing at this point that all rights
acquired by the tenant-farmer under P.D. No.
27, as recognized under E.O. No. 228, are
retained by him even now under R.A. No.
6657. This should counter-balance the express
provision in Section 6 of the said law that "the
landowners whose lands have been covered
by Presidential Decree No. 27 shall be allowed
to keep the area originally retained by them
thereunder, further, That original homestead
grantees or direct compulsory heirs who still
own the original homestead at the time of the
approval of this Act shall retain the same areas
as long as they continue to cultivate said
homestead."
In connection with these retained rights, it does
not appear in G.R. No. 78742 that the appeal
filed by the petitioners with the Office of the
President has already been resolved. Although
we have said that the doctrine of exhaustion of
administrative remedies need not preclude
immediate resort to judicial action, there are
factual issues that have yet to be examined on
the administrative level, especially the claim
that the petitioners are not covered by LOI 474
because they do not own other agricultural
lands than the subjects of their petition.
Obviously, the Court cannot resolve these
issues. In any event, assuming that the
petitioners have not yet exercised their
retention rights, if any, under P.D. No. 27, the
Court holds that they are entitled to the new
retention rights provided for by R.A. No. 6657,
which in fact are on the whole more liberal than
those granted by the decree.
V
The CARP Law and the other enactments also
involved in these cases have been the subject
of bitter attack from those who point to the
shortcomings of these measures and ask that
they be scrapped entirely. To be sure, these
enactments are less than perfect; indeed, they
should be continuously re-examined and
rehoned, that they may be sharper instruments
for the better protection of the farmer's rights.
But we have to start somewhere. In the pursuit
of agrarian reform, we do not tread on familiar
ground but grope on terrain fraught with pitfalls
and expected difficulties. This is inevitable. The
CARP Law is not a tried and tested project. On
the contrary, to use Justice Holmes's words, "it
is an experiment, as all life is an experiment,"
and so we learn as we venture forward, and, if
necessary, by our own mistakes. We cannot
expect perfection although we should strive for
it by all means. Meantime, we struggle as best
we can in freeing the farmer from the iron
shackles that have unconscionably, and for so
long, fettered his soul to the soil.
By the decision we reach today, all major legal
obstacles to the comprehensive agrarian
reform program are removed, to clear the way
for the true freedom of the farmer. We may
now glimpse the day he will be released not
only from want but also from the exploitation
and disdain of the past and from his own
feelings of inadequacy and helplessness. At
last his servitude will be ended forever. At last
the farm on which he toils will be his farm. It will
be his portion of the Mother Earth that will give
him not only the staff of life but also the joy of
living. And where once it bred for him only
deep despair, now can he see in it the fruition
of his hopes for a more fulfilling future. Now at
last can he banish from his small plot of earth
his insecurities and dark resentments and
"rebuild in it the music and the dream."
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27,
Proc. No. 131, and E.O. Nos. 228
and 229 are SUSTAINED against
all the constitutional objections
raised in the herein petitions.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
2. Title to all expropriated
properties shall be transferred to
the State only upon full payment
of compensation to their
respective owners.
3. All rights previously acquired
by the tenant- farmers under P.D.
No. 27 are retained and
recognized.
4. Landowners who were unable
to exercise their rights of
retention under P.D. No. 27 shall
enjoy the retention rights granted
by R.A. No. 6657 under the
conditions therein prescribed.
5. Subject to the above-
mentioned rulings all the petitions
are DISMISSED, without
pronouncement as to costs.
SO ORDERED.
Fernan, (C.J.), Narvasa, Melencio-Herrera,
Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.
 Ichong vs. Hernandez, 101 Phil 115
101 Phil. 1155
LABRADOR, J.:
I.  The case and the issue, in general
This Court has before it the delicate task  of
passing upon the  validity  and constitutionality
of a  legislative enactment,  fundamental  and  liabilities and their offices and principal  offices
far-reaching  in  significance. The enactment
poses questions of due process, police  power
and equal protection of the laws.  It also poses
an important issue of fact, that is whether the
conditions which the disputed law purports to  liquidation,
remedy really  or actually exist. Admittedly
springing from a deep, militant, and positive
nationalistic impulse, the law purports to
protect citizen and country from the  alien 
retailer.   Through it,  and within the field of
economy it regulates, Congress attempts to
translate national aspirations for economic
independence and national  security, rooted in
the drive and urge for national survival and  this  action to obtain  a judicial declaration that
welfare, into a concrete and tangible measures
designed to free the national retailer from the
competing dominance of  the alien, so  that  the
country and the nation may  be  free from  a 
supposed economic dependence and
bondage.  Do the facts and circumstances
justify the enactment?
II. Pertinent 'provisions of Republic Act No.
1180
Republic Act No. 1180  is entitled "An Act to
Regulate the Retail Business."  In effect  it
nationalizes the retail trade business. The main
provisions of the Act are: (1) a prohibition
against persons, not citizens of the
Philippines,  and against associations, 
partnerships, or  corporations the capital of
which are not wholly owned  by citizens of  the
Philippines, from  engaging  directly or 
indirectly in  the retail trade;  (2) an exception 
from  the  above prohibition in favor  of  aliens
actually  engaged in said business on May 15, 
1954, who are allowed to continue  to engage
therein, unless their licenses are forfeited in
accordance with the law, until their death or
voluntary retirement in case of natural persons,
and  for ten years  after the approval of the Act
or until the expiration of term  in case of
juridical persons; (3) an exception therefrom  in
favor of citizens and juridical entities of the
United States; (4) a  provision for the forfeiture
of  licenses  (to engage in the retail business)
for violation of the laws on nationalization, 
economic control weights  and measures and
labor and other laws  relating to trade,
commerce and  industry; (5)  a  prohibition 
against the establishment or opening by aliens
actually engaged in the retail business of
additional stores  or branches of retail
business,  (6) a provision requiring aliens 
actually engaged  in the retail business  to
present  for  registration  with the  proper
authorities  a verified  statement concerning
their  businesses, giving, among other matters,
the nature of the business, their assets and
 
of juridical entities;  and (7) a provision allowing
the heirs of  aliens now negated in the  retail 
business  who  die,  to continue such business
for a period of six months for purposes of
III. Grounds upon which petition is based
Answer thereto
Petitioner, for  and in  his own behalf and on
behalf  of other alien residents,  corporations
and partnerships  adversely affected by the
provisions of Republic Act No. 1180, brought
said Act is unconstitutional, and to  enjoin  the 
Secretary of  Finance  and all other persons
acting under him, particularly city and municipal
 HUMAN RIGHTS PRELIMFULLTEXT CASES
treasurers, from enforcing its provisions.  derives  its  existence from the very existence
Petitioner attacks the  constitutionality of the of the State itself, it does not need to  be
Act, contending that: (1) it denies to alien expressed  or defined in its scope; it is  said to
residents the equal protection  of the laws and be  co-extensive with self- protection and 
deprives them of their liberty  and  property survival, and as such it is  the most positive
without due process of law;  (2) the subject of and active of all governmental processes, the
the Act is not expressed or comprehended  in most essential, insistent and illimitable.  
the title thereof;  (3) the Act  violates  Especially is it so under a modern democratic
international and treaty obligations of the framework where the demands of society and
Republic of the Philippines; (4) the provisions of nations have multiplied to  almost 
of the Act  against  the  transmission by aliens  unimaginable proportions; the field and scope
of their retail  business  thru hereditary of police power has  become almost
succession, and those requiring  100%  boundles3, just as the fields  of public interest
Filipino  capitalization for  a corporation or and public  welfare have become almost all-
entity to  entitle it to engage in  the retail embracing and have transcended human 
business, violate the spirit  of Sections  1 and foresight.  Otherwise stated,   as  we cannot
5,  Article XIII and Section  8 of Article XIV  of foresee the  needs and demands of public
the Constitution. In answer,  the Solicitor- interest and welfare in this constantly  changing
General  and  the  Fiscal  of the City of Manila  and progressive world,  so we cannot delimit
contend  that:  (1)   the Act  was  passed in  beforehand the extent or scope of police power
the  valid exercise of the  police  power  of the by  which  and through which the State seeks
State, which  exercise  is  authorized  in the  to attain  or  achieve  public interest or
Constitution  in the interest of national welfare.   So it is that Constitutions do not
economic survival;  (2)  the Act has only one define the scope or extent of the police power 
subject embraced in the title;  (3)  no  treaty or of the State;  what  they  do is to  set forth the
international  obligations  are  infringed;  (4)  as limitations thereof.  The most important of
regards hereditary  succession, only the form is these are the due process clause  and the 
affected but the value of the property is not equal  protection clause.
impaired, and the institution of inheritance  is
only of statutory  origin. b. Limitations on police  power.
The basic limitations of due process and equal
protection are found in the following  provisions
IV. Preliminary consideration of legal principles of  our Constitution:
involved
a. The police power. "SECTION 1.(1)  No person shall  be deprived
There is no  question that the Act was of life, liberty or property  without  due process 
approved in the exercise of the  police power, of law,  nor shall any  person be denied  the 
but  petitioner claims that its  exercise in this equal  protection  of  the  laws."  (Article  III, 
instance is  attended  by a violation of the Phil. Constitution)
constitutional requirements of  due process and These constitutional guarantees which embody
equal protection of the laws.  But before the essence of individual liberty and freedom
proceeding to the consideration and  resolution in  democracies, are not limited to citizens
of the ultimate issue- involved, it would be well alone but  are admittedly  universal in their
to bear in mind  certain basic and fundamental, application, without regard to any differences of
albeit  preliminary, considerations in the race, of color, or of nationality.   (Yick
determination of the ever recurrent conflict Wo vs. Hopkins, SO, L. ed. 220, 226.)
between police power and the guarantees of
due process and equal protection of the laws.  c. The equal  protection  clause.
What is the scope of  police power, and how The equal protection of the law  clause is
are the  due  process  and equal protection  against undue favor  and individual  or class
clauses related to it V  What is the province privilege, as well as hostile discrimination or
and  power of the legislature, and what is the the  oppression of  inequality.  It is not intended
function and duty  of the  courts?   These to prohibit legislation, which is limited either in
consideration  must  be clearly  and correctly the object to which  it is directed or by territory
understood that their application to the facts of within which it is to operate.  It does not
the case may be brought forth with clarity and demand absolute equality among residents;  it
the issue accordingly resolved. merely   requires that  all  persons shall  be
treated alike, under like circumstances and
It has been said that police power is so far- conditions both as  to  privileges conferred 
reaching in scope,  that  it  has  become  and  liabilities  enforced. The equal protection
almost impossible to limit its sweep.  As it clause is not infringed by legislation which
 HUMAN RIGHTS PRELIMFULLTEXT CASES
applies  only  to those persons falling within  a reasonableness and wisdom, of any law
specified class, if it applies alike to all persons  promulgated in the exercise of the police 
within such class, and reasonable grounds power, or of the measures  adopted to 
exists for making" a distinction between those  implement the  public policy or to achieve
who fall  within  such class and those who  do  public interest.  On the other hand, courts,
not. (2 Cooley, Constitutional Limitations, 824- although zealous guardians of  individual
825.) liberty  and  right,  have nevertheless evinced 
a reluctance to interfere  with the exercise of
d. The due process  clause. the  legislative prerogative.   They have  done
The due process clause has to do with  the  so early where there  has been  a clear, 
reasonableness of legislation enacted in patent  or palpable arbitrary and  unreasonable
pursuance of the police power. Is there  public abuse of  the legislative prerogative. 
interest, a public purpose; is public welfare Moreover,  courts are not supposed  to
involved?  Is the  Act reasonably  necessary  override legitimate policy, and courts never
for the  accomplishment of the  legislature's inquire into  the wisdom of the law.
purpose; is it not unreasonable,  arbitrary  or
oppressive? Is.  there  sufficient foundation  or V. Economic  problems  sought to be 
reason in connection with  the matter  remedied
involved ; or has there not been a capricious With the above  considerations in mind,  we 
use of the legislative power?  Can the aims  will now proceed to  delve directly into  the 
conceived  be achieved by the means used,  or issue involved.  If the disputed legislation were
is it not merely an unjustified interference with merely a regulation, as  its title indicates, there
private  interest?  These  are  the  questions would be no question  that  it falls within the
that  we ask when the due process test  is legitimate  scope of  legislative power.  But it
applied. goes further and prohibits  a group  of
residents,  the aliens, from engaging therein. 
The conflict,  therefore, between  police  power The  problem becomes more complex because
and the guarantees  of due process  and  its subject is a common, trade or  occupation,
equal  protection  of the laws is  more as old  as society itself, which  from time
apparent  than real.  Properly  related, the immemorial  has always been open to 
power and the  guarantees are supposed to residents, irrespective of race, color or
coexist.  The balancing is the essence or, shall citizenship.
it be said, the indispensable means for  the
attainment  of legitimate  aspirations  of any a. Importance of  retail trade in the  economy 
democratic  society.   There can be no absolute of  the nation.
power, whoever exercise it, for that would be In a primitive economy where families produce
tyranny.  Yet there can neither be absolute all that they consume and consume all that
liberty, for that would mean license and  they produce, the dealer, of course, is
anarchy.  So the State  can deprive persons of unknown.  But  as group  life develops  and
life, liberty  and  property, provided there  is  families begin to live in communities producing
due  process  of law; and persons may be more than what they  consume  and needing 
classified into classes and groups, provided an  infinite  number of things they do not
everyone  is  given  the  equal  protection  of produce, the dealer comes into  existence.
the law.  The test  or  standard,  as  always,  is 
reason.  The police power legislation must  be As villages develop into big communities and
firmly grounded on public interest  and  welfare, specialization in production begins, the dealer's
and a reasonable relation must exist between  importance is enhanced. Under modern
purposes and  means.   And if distinction and conditions and standards of living, in which
classification has been  made, there must be a man's needs have  multiplied and  diversified to
reasonable  basis for said  distinction. unlimited extents and proportions, the retailer
comes  as essential as the producer, because
e. Legislative discretion not subject to judicial thru him the infinite variety of articles, goods 
review. and commodities  needed  for  daily life  are
Now,  in this matter of equitable balancing1, placed within the easy  reach of consumers. 
what is the proper place and role of the Retail  dealers perform the functions  of
courts?  It must not be  overlooked, in the first  capillaries  in the human body, thru which all
place, that the legislature, which is the the needed food and supplies  are ministered
constitutional repository of police power and to members of the  communities comprising the
exercises the prerogative  of  determining the nation.
policy of the State, is by force of circumstances
primarily the judge of  necessity, adequacy or There cannot be any question about  the 
 HUMAN RIGHTS PRELIMFULLTEXT CASES
importance of the retailer in the life of the  In one breath it  is said that the  fear  is 
community.   He ministers to the  resident's unfounded  and the threat is  imagined;  in
daily needs,  food in all  its increasing forms,  another,  it is charged that the law is merely the
and the various little  gadgets and  things  result of racialism and pure and unabashed 
needed for home and  daily life.  He provides nationalism.  Alienage, it is said, is not an
his customers around his store with the rice or element of  control; also so  many
corn, the fish, the salt, the vinegar, the spices  unmanageable factors in the retail business
needed  for  the  daily cooking.   He  has cloths make control virtually impossible.  The first
to sell,  even the needle and  the  thread to argument which brings up an issue of fact
sew  them or darn  the clothes that wear out.  merits serious consideration.  The others are
The retailer, therefore, from  the lowly peddler,  matters of opinion within the exclusive
the owner of a small  sari-sari store, to the competence of the legislature and beyond our 
operator of a department store or a  prerogative to pass upon and  decide.
supermarket  is so much a part of day-to-day
existence. The best evidence  are the statistics on the 
retail  trade, which put down the figures in
b. The alien retailer's, traits. black and white.  Between the constitutional 
The alien retailer  must have started plying  his  convention year  (1935), when the fear of alien
trade in this  country in the bigger centers  of domination and  control of  the retail trade
population (Time there  was when he was already filled the minds  of our  leaders  with
unknown in provincial  towns and villages).  fears and misgivings, and the year of the 
Slowly  but  gradually  he  invaded towns and enactment of the  nationalization of the retail 
villages; now he predominates in the cities and trade  act (1954), official statistics unmistakably
big centers of population.  He even pioneers in point  out  to  the  ever-increasing  dominance
far  away nooks where the beginnings of and  control by the  alien of  the retail trade,  as
community life  appear,  ministering to the daily witness the  following tables:
needs of the residents  and purchasing  their
agricultural produce for sale in the towns.  It is Gross
Assets
an undeniable fact that in many communities  Sales
the alien has replaced  the native retailer.  He  Year Per
No.
has shown in  this  trade,  industry without and Per cen
-Esta
limit,  and the patience and forbearance  of a Retailer' Pes cent Pes t
blish
slave. Derogatory epithets are hurled at him, s os Distrib os Dist
ment
but he laughs these off without murmur;  insults National ution ribu
s
of ill-bred  and insolent neighbors and  ity tion
customers  are made in  his face,  but he  1
heeds them not,  and he forgets, and forgives.  9
 
The community takes no note of him, as he 4
appears to be  harmless and extremely useful. 1:
Filipin 200, 174,
106, 517
c.  Alleged  alien  control  and  dominance.   o ....... 323, 55.82 181,
671 4
There is a general feeling on the part of the ........ 138 924
public, which appears to be true to  fact, about  Chine 118, 148,
15,3 44.
the controlling and dominant position that the   se ..... 348, 32.98 8.13
56 21
alien retailer holds in the nation's economy.   ......... 692 ,239
Food and  other  essentials, clothing, almost all Other 40,1 13,6
1,64 4.0
articles of daily life  reach the  residents  mostly   s ....... 87,0 11.20 30,2
6 5
through him.  In big cities and  centers  of ......... 90 89
population he  has  acquired not only    
predominance, but apparent control aver 1
distribution of almost all kinds of  goods, such 9
 
as  lumber, hardware,  textiles, groceries, 4
drugs, sugar, flour,  garlic, and  scores of other 7:
goods and articles.  And  were it  not for some Filipin 208, 279,
111, 57.
national corporations like the Naric, the   o ....... 658, 65.05 583,
107 03
Namarco, the  Facomas  and the Accfa,  his  ....... 946 888
control  over principal foods and products Chine
106, 205,
would easily  become full and complete. se .....13,7 41.
  156, 33.56 701,
.......... 74 96
218 134
Petitioner  denies that there is alien .
predominance and control in  the retail trade.     Otters 354 8,76 ..49 4,92 1.0
 HUMAN RIGHTS PRELIMFULLTEXT CASES
.......... 1,26 7,16 Filipino ..........................
1 1,87 1,6
...... 0 8   .......................................
8 38
    .............
1948: Chinese.........................
7,70 9,6
(Census   .......................................
7 91
) ................
    Others............................
24,4 8,2
Filipin 213, 467,   .......................................
118, 60. 16 81
  o........ 842, 67.30 161, ...............
681 51
...... 264 667 1947:
Chine 93,1 294, Filipino...........................
12,0 38. 1,87 2,5
  se...... 55,4 29.38 894,   .......................................
87 20 8 16
........ 59 227 ..............
Other 10,5 9,99 Chinese ........................
1.2 7,70 14,
  s........ 422 14,6 3.32 5,40   .......................................
9 7 934
.......... 75 2 .................
    Others ...........................
24,7 13,
1   .......................................
49 919
9 ...............
 
4 1948: (Census)
9: Filipino...........................
1,87 4,1
      .......................................
8 11
Filipin 213, 462, ..............
113, 53.
  o ....... 461, 60.30 532, Chinese ........................
659 47 7,70 24,
....... 602 901   .......................................
7 398
Chine 125, 392, .................
16,2 45.
  se ..... 223, 35.72 414, Others............................
48 36 24,9 23,
......... 886 876   .......................................
16 686
Other 12,0 10,0 ...............
1.1
  s .......486 66,3 3.39 78,3 1949:
7
......... 65 64 Filipino...........................
1,87 4,0
      .......................................
8 69
1 ..............
9 Chinese ........................
  7,70 24,
5   .......................................
7 152
1: .................
    Others ...........................
24,8 20,
Filipin 224, 466,   .......................................
119, 53. 07 737
  o ....... 053, 61.09 058, ..............
362 07
......... 620 052 1951:
Chine 134, 404, Filipino...........................
17,4 46. 1,87 3,9
  se ..... 325, 36.60 481,   .......................................
29 06 7 05
......... 303 384 ...............
Other 8,61 7,64 Chinese ........................
7,70 33,
  s .......347 4,02 2.31 5,32 .87   .......................................
7 207
........ 6 7 .................
    Others ...........................
24,8 22,
AVERAGE   .......................................
24 033
ASSETS AND GROSS SALES ............
PER ESTABLISHMENT          
              (Estimated Assets and Gross Sales
Item of Retail Establishments, By Year
Sal
Gro and Nationality of Owners,
es
ss Benchmark: 1948 Census, issued
Year by the Bureau of Census and
(Pe
and Ass Statistics, Department of
sos
Retail ets Commerce and Industry; pp. 18-19
)
er's of Answer.)
Nation (Pes
ality os) The above statistics  do not include
1941: corporations and partnerships, while  the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
figures  on  Filipino establishments already  says:
include  mere  market  vendors,  whose capital 
is necessarily small. "But there has been a general feeling that alien
dominance over the economic life of the
The above figures reveal that in  percentage  country is not desirable and that if such  a
distribution  of assets and of gross sales,  alien situation should remain, political independence
participation has steadily increased during the alone is no  guarantee to national stability and 
years.  It  is true, of course, that  Filipinos have strength.   Filipino private  capital is not big
the edge in the number of retailers, but aliens enough to  wrest from alien hands the control 
more than make up  for the  numerical gap of the national economy. Moreover,  it is but of 
through their assets and gross sales  which recent formation and hence, largely 
average between six and seven  times  those  inexperienced, timid  and hesitant.  Under 
of the  very  many  Filipino  retailers. Numbers such  conditions, the  government as the
in  retailers, here, do  not imply superiority; the instrumentality of the national  will, has to step
alien  invests  more capital,  buys and sells six  in  and assume the initiative, if not the
to seven times more, and gains much more. leadership,  in the struggle  for the economic
The same official report, pointing out to  the  freedom  of the nation in somewhat the  same
known predominance of  foreign elements  in way that it did in the crusade for political
the retail  trade,  remarks that the  Filipino  freedom.  Thus  *  * *  it (the Constitution) 
retailers were largely engaged in minor retailer envisages  an  organized movement for the
enterprises. As  observed  by respondents,  the protection of the nation not only against the
native  investment  is thinly spread,  and the possibilities of armed invasion but also against
Filipino  retailer is practically helpless in its economic subjugation by  alien  interests in
matters of capital, credit,  price" and  supply. the economic field."   (Phil. Political  Law by
Sinco, 10th ed., p. 476.)
Belief in  the existence of  alien control  and
d. Alien control and threat,  subject of predominance  is felt  in other  quarters.  
apprehension in Constitutional Convention. Filipino  businessmen, manufacturers  and
producers  believe so; they fear the dangers
It is this domination and control, which  we coming from  alien  control, and  they express
believe  has been  sufficiently shown to exist,  sentiments  of  economic independence. 
that  is the legislature's target in the  enactment Witness thereto is Resolution No.  1,  approved
of  the  disputed  nationalization law.  If they did on July  IS,  1958, of the Fifth National 
not exist as a fact the sweeping remedy of Convention  of Filipino  Businessmen,  and. a
nationalization  would  never have   been  similar resolution, approved on March 20,
adopted.  The framers  of our Constitution  1954, of the Second National Convention  of
also  believed in the existence of this alien Manufacturers  and Producers.  The man in the
dominance and control when they approved  a street also  believes, and  fears, alien
resolution categorically declaring  among other predominance  and control; so our
things, that "it is the sense of the Convention newspapers,  which have editorially pointed
that the public interest requires  the out  not only to control but to alien
nationalization of the retail trade; * * *."   (II stranglehold.  We, therefore,  find  alien
Aruego,  The Framing of the  Philippine domination and   control to  be  a  fact,  a 
Constitution, 662 663, quoted on page  67 of reality proved by  official statistics, and  felt  by 
Petitioner.)  That was twenty- two  years ago; all the  sections and groups that compose the
and  the events since  then  have not been Filipino  community.
either pleasant or comforting.  Dean  Sinco  of
the University of the Philippines College of  e.  Dangers of alien control  and dominance in
Law, commenting on the patrimony clause of  retail.
the Preamble opines that the fathers of our But the  dangers arising  from  alien 
Constitution  were merely translating the  participation  in the retail trade  does not seem
general preoccupation  of Filipinos "of the to lie in  the  predominance alone; there is  a
dangers  from  alien interests that  had already  prevailing  feeling  that  such  predominance
brought under their control  the commercial and may  truly endanger  the national  interest. 
other  economic activities of the  country" With ample capital,  unity of purpose and
(Sinco, Phil. Political Law, 10th ed., p. 114); action  and  thorough organization,  alien 
and analyzing the concern of the members  of retailers and merchants  can act  in such 
the constitutional convention for the economic  complete  unison and concert on such  vital 
life  of the citizens,  in  connection with  the matters as the fixing of prices, the
nationalistic provisions  of  the  Constitution, he determination of  the amount of goods or
articles to be made available in the market,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
and  even the choice of the goods or  articles out  of  the land, violated  import and export
they would or would not patronize  or  prohibitions, control  laws  and the like, in
distribute, that  fears of dislocation  of  the  derision and contempt of  lawful  authority. It is
national economy and  of  the  complete also believed  that they have  engaged in
subservience of  national retailers and of the  corrupting public  officials with fabulous bribes,
consuming public are not entirely unfounded.  indirectly causing the prevalence  of graft and
Nationals,  producers and consumers alike, corruption in the  Government. As a matter of
can  be placed completely  at  their mercy.   fact appeals to unscrupulous aliens have been
This is  easily illustrated.  Suppose an article of made both  by the  Government and  by their
daily use  is  desired to be prescribed  by the own lawful diplomatic representatives,  action
aliens, because the  producer or importer does which  impliedly admits a prevailing feeling 
not offer them sufficient profits, or because a about  the  existence of many of the above 
new competing article offers bigger profits for practices.
its introduction.  All that aliens would do is to
agree to refuse to sell the first article,  The  circumstances above set forth create well
eliminating it from their stocks, offering the new founded fears that worse things  may come  in 
one as a substitute. Hence, the producers or the future.   The present  dominance  of the 
importers of the prescribed article, or its alien  retailer,  especially in the big'  centers  of 
consumers, find the article suddenly out of population, therefore, becomes a potential
circulation.  Freedom of  trade  is  thus  source of danger  on  occasions  of  war  or
curtailed and  free enterprise  correspondingly other calamity.  We do not have here in this
suppressed. country isolated groups of harmless aliens
retailing  goods among nationals ; what we
We can even  go farther than  theoretical  have are well  organized and powerful groups
illustrations to show the pernicious  influences  that dominate the  distribution of  goods and
of  alien  domination. Grave  abuses have commodities in the communities and big
characterized the exercise of  the retail trade  centers of population. They owe no allegiance
by aliens.  It  is a  fact  within judicial notice, or loyalty to the State,  and  the State cannot
which  courts  of  justice may  not  properly  rely upon them in times of  crisis  or
overlook or ignore in  the  interests  of truth and emergency. While  the  national holds his  life, 
justice,  that there exists a general feeling  on his  person  and  his property subject  to the 
the part of the public that alien participation in needs of  his  country,  the alien may even 
the retail trade has  been attended by  a become  the potential  enemy of the  State.
pernicious  and intolerable practices,  the 
mention of a few of which would  suffice for our f. Law enacted in interest  of  national 
purposes; that at some time  or other they  economic  survival and security.
have cornered  the  market of  essential  We are fully satisfied  upon a consideration of
commodities,  like  corn and  rice,   creating all  the facts and  circumstances  that  the
artificial scarcities to justify  and enhance disputed law is  not the product of racial
profits to unreasonable proportions;  that  they hostility, prejudice or discrimination, but the
have hoarded essential foods to the  expression  of the legitimate desire and
inconvenience and prejudice of the consuming determinetion of the people, thru  their
public, so much so that the Government has authorized representatives, to free the nation
had to establish  the National Rice  and  Corn  from the economic  situation that has
Corporation  to  save the public  from  their •unfortunately  been saddled upon it  rightly  or
continuous hoarding practices  and tendencies; wrongly, to its disadvantage.   The  law is
that they have violated  price control laws, clearly  in  the interest of the public,  nay of  the
especially on foods and essential national  security itself,  and indisputably falls
commodities,  such that the legislature had to within the scope of police  power, thru which
enact a law  (See.  9, Republic Act No.  1168),  and  by which  the State  insures  its existence
authorizing  their  immediate  and  automatic and security and  the supreme  welfare  of its 
deportation for price control convictions; that citizens.
they  have secret combinations among
themselves  to control prices, cheating the 
operation of the law of supply and  demand; VI.  The Equal Protection Limitation
that they  have  connived to  boycott  honest a. Objections to alien  participation in retail 
merchants and traders who would not cater or trade.
yield to their  demands, in unlawful restraint of The next question that now poses solution  is,
freedom of trade and enterprise. They are Does the law  deny the  equal protection of the
believed by the public to have evaded  tax laws?  As pointed out  above,  the mere fact 
laws, smuggled goods  and money  into  and of  alienage is  the  root  and cause  of the 
 HUMAN RIGHTS PRELIMFULLTEXT CASES
distinction  between the alien and  the national  b.  Difference in alien aims and purposes
as a trader.  The alien  resident  owes  sufficient basis for distinction.
allegiance to the country of his birth or  his  The above objectionable characteristics of the 
adopted country; his stay  here  is  for  exercise of the  retail  trade  by  the  aliens, 
personal  convenience;  he  is  attracted by the which are actual and real,  furnish  sufficient 
lure of gain  and profit.   His aim  or purpose of grounds for legislative classification  of  retail 
stay, we admit, is neither illegitimate  nor traders into nationals and  aliens.   Some may
immoral, but he is naturally lacking  in  that  disagree with  the  wisdom  of the legislature's
spirit of loyalty  and enthusiasm for this  classification.  To this we answer, that this is
country where he temporarily stays and makes the prerogative of the law-making  power. 
his  living,  or of  that spirit' of  regard,  Since the Court  finds that the classification  is
sympathy and  consideration for his  Filipino actual, real  and  reasonable,  and  all persons 
customers  as would prevent  him from taking  of  one class are  treated alike, and  as it
advantage  of their weakness and  exploiting cannot be said that the classification is patently
them.  The faster he makes his pile, the earlier unreasonable and unfounded,  it is  in  duty
can  the alien go  back  to  his beloved  country bound  to  declare that the legislature acted
and his beloved  kin and countrymen.  The  within  its legitimate prerogative and it cannot 
experience of the country is that the alien declare  that the act  transcends  the limit of 
retailer has  shown such  utter disregard for equal protection  established  by  the 
his  customers and the people on whom he Constitution.
makes his profit, that  it  has been  found
necessary to adopt the legislation, radical as it Broadly speaking, the power of the legislature 
may seem. to make distinctions  and classifications among
persons  is not  curtailed or denied by the equal
Another objection to the  alien retailer in this protection of the laws clause. The legislative
country is that he  never  really  makes a power admits of a wide scope of discretion,
genuine contribution to national  income and and a law can be  violative of the constitutional
wealth.  He undoubtedly contributes to general  limitation only when the classification  is 
distribution,  but  the gains  and  profits he without reasonable basis. In  addition  to the 
makes are not invested  in  industries that  authorities  we  have earlier cited, we can also
would help the country's economy  and refer to the case of Lindsley vs. Natural
increase  national  wealth.  The alien's interest Carbonic Gas Co.  (1911),  55  L.  ed., 369, 
in this country being merely transient and which  clearly  and  succinctly  defined the 
temporary,  it would indeed be ill-advised to application  of equal protection clause to a law
continue  entrusting the very important function sought to  be voided  as contrary thereto:
of retail distribution to his hands.
'* * *1. the equal protection  clause of the
The practices  resorted  to by aliens in the  Fourteenth Amendment does not  take  from 
control of distribution, as  already pointed out  the state the  power  to classify in the adoption
above, their  secret manipulations of stocks of  of police laws, but admits of the exercise of the
commodities  and prices, their utter  disregard  wide  scope of discretion m  that regard, and
of  the welfare  of their customers and of the avoids  what is done only when it is without any
ultimate  happiness  of  the people  of the  reasonable basis, and therefore is purely 
nation of which they are mere guests, which  arbitrary.
practices, manipulations and  disregard do not
attend the  exercise  of the trade  by the 2. A classification having  some reasonable
nationals,  show the  existence of real and basis does  not  offend against that clause
actual,  positive  and fundamental  differences merely because it is not made with
between  an alien and a national which fully  mathematical nicety, or because in  practice it
justify  the  legislative classification adopted in results in  some inequality.  3. When the
the retail  trade  measure.   These differences  classification in  such a law is called in
are   certainly a valid  reason  for  the  State to question, if  any  state of facts  reasonably  can
prefer the national over the alien  in  the retail be  conceived  that would sustain it, the
trade. existence of that state of  facts at  the  time the
law was enacted must be assumed. 4.  One 
We would be doing violence to  fact and  reality who assails  the classification in such  a law 
were  we to hold  that no  reason or ground for must carry the  burden  of showing that it does
a legitimate distinction  can be  found between  not  rest  upon any  reasonable  basis, but is
one and  the other. essentially arbitrary.'"
c. Authorities  recognizing   citizenship   as  
basis   for classification.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The  question as   to  whether  or  not  otherwise justified simply because the limitation
citizenship   is  a legal and valid ground  for  of the  class  falls  along  the lines of
classification has already  been affirmatively  nationality.  That would be requiring a higher
decided in  this  jurisdiction  as  well as  in degree of protection for  aliens  as  a  class
various courts in the United States.  In the case than for similar classes  of American citizens. 
of Smith Bell &  Co.  vs. Natividad, 40 Phil,  Broadly speaking, the difference  in status
136, where  the validity of  Act  No. 2761  of between citizens and aliens constitutes  a basis
the  Philippine  Legislature  was  in issue, for reasonable  classification in  the exercise of
because  of  a  condition therein limiting  the police power,"  (2  Am. Jur. 468-469.)
ownership of vessels engaged in coastwise In Commonwealth vs. Hana, 81 N. E. 149,
trade  to corporations formed by citizens of the (Massachusetts, 1907), a statute on the
Philippine Islands or the United States,  thus licensing of hawkers and peddlers, which
denying the  right  to  aliens, it was  held  that provided that  no one can  obtain  a license
the  Philippine Legislature did  not  violate the unless he  is, or has declared his intention, to
equal  protection clause of the Philippine Bill of become a citizen of the United States, was 
Rights.   The Legislature  in  enacting the  law  held valid, for the  following reason:   It  may 
had  as ultimate purpose the encouragement of seem wise to the legislature to  limit the
Philippine shipbuilding and the safety for these  business of those who  are  supposed to have
Islands from foreign interlopers.  We  held that regard for' the  welfare, good order and
this  was  a  valid exercise  of  the police  happiness of  the  community,  and the court
power,  and  all presumptions  are in  favor  of  cannot question  this judgment and
its  constitutionality.   In substance, we  held conclusion.   In  Bloomfield vs. State, 99 N.E. 
that the  limitation  of domestic ownership  of 309 (Ohio, 1912), a  statute which prevented
vessels engaged  in  coastwise trade  to  certain persons, among them aliens, from
citizens of the  Philippines  does not violate  the engaging in the traffic  of liquors,  was found
equal  protection of the law and due process of  not to be the result of race hatred, or in
law  clauses of the Philippine Bill  of Rights.   hospitality, or  a  deliberate purpose to 
In  rendering  said  decision  we quoted with discriminate,  but  was  based on  the  belief 
approval the concurring opinion  of  Justice that  an  alien cannot  be  sufficiently 
Johnson in the  case of Gibbons vs. Ogden, 9 acquainted with 'our institutions and  our life as
Wheat., I,  as follows: to enable him to  appreciate the relation of  this
particular business to our entire social fabric",
" 'Licensing acts, intact, in legislation, are and was not, therefore, invalid. In  Ohio ex  rel.
universally  restraining acts;  as, for  example, Clarke vs. Deckebach, 274 U.S. 392, 71 L. ed.
acts licensing1 gaming houses, retailers of 1115  (1926), the U.  S. Supreme Court had
spirituous liquors,  etc.   The act, in this under consideration an ordinance of the city 
instance, is  distinctly of that character, and of  Cincinnati prohibiting the issuance of
forms part of an extensive system, the object of licenses  (pools and billiard rooms) to aliens.  It
which is to encourage  American shipping, and  held that  plainly irrational  discrimination
place them  on an equal footing with, the against aliens is prohibited, but it  does not
shipping of other nations.  Almost  every follow that alien  race and allegiance may not
commercial  'nation reserves to its own bear in some instances such  a  relation to  a
subjects a monopoly of its coasting trade;  and  legitimate object of legislation as to  be made
a  countervailing privilege in favor  of American the  basis  of  permitted  classification,  and
snipping is contemplated,  in the whole that it could not state  that the legislation is
legislation of the United States on this subject.  clearly wrong; and that  latitude  must  be
It  is not  to  give the vessel  an American allowed for  the  legislative appraisement of
character, that the license is granted; that local conditions and for the legislative choice of
effect has been correctly attributed to the act of methods for controlling an apprehended evil.  
her enrollment.  But it is to confer on her The case of State  vs. Carrol,  124 N. E. 129 
American  privileges, as contradistinguished  (Ohio,  1919)  is a parallel case to  the one at
from  foreign; and to preserve the Government bar.   In Asakura, vs. City of Seattle,  210  P. 
from fraud by foreigners; in surreptitiously SO (Washington,  1922),  the  business of
intruding themselves  into the American pawnbroking was  considered as having
commercial marine,, as well as frauds upon the tendencies  injuring public interest, and limiting
revenue  in the trade coastwise, that  this it to citizens is within the scope  of police 
whole system  is projected.' " power.  A  similar  statute  denying aliens the
The  rule in general is as follows: right to engage in auctioneering was also
sustained in Wright vs. May, L. R. A., 1915 P.
"Aliens are raider no  special  constitutional 151 (Minnesota, 1914).   So also in Anton vs. 
protection  which forbids n classification Van Winkle,  297  V. 340 (Oregon, 1924), the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
court said  that aliens are judicially known  to real reason for the decision, therefore,  is the
have different  interests, knowledge,  attitude, court's  belief that no public benefit would  be 
psychology and loyalty, hence the prohibition of derived from  the  operation of the law and  on
issuance of licenses to them for the business of the  other hand  it would deprive Chinese of
pawnbroker, pool, billiard, card room, dance something indispensable for carrying on their
hall,  is not  an infringement of constitutional business. In Yick Wo vs. Hopkins, 30 L. ed.
rights. In Templar vs. Michigan State Board of 220  (1885)  an ordinance conferring power on
Examiners,  90 N.W.  1058  (Michigan,  1902),  officials to  withhold  consent in the operation
a law prohibiting the licensing  of  aliens as of  laundries both  as to persons and place,
barbers  was  held void, but  the  reason  for was declared  invalid, but the  court said that
the  decision  was  the  court's finding that the the power granted was  arbitrary, that there
exercise of the business  by the aliens does not was no reason for  the discrimination which 
in any  way  affect the morals,  the health, or attended the administration  and
even the convenience  of the community.   In implementation of  the  law, and that  the 
Takahashi vs. Fish and Game Commission, 92 motive thereof was mere racial hostility.  In 
L. ed. 1479  (1947), a  California statute State vs. Montgomery, 47 A. 165 (Maine, 
banning the issuance of commercial fishing  1900),  a  law prohibiting aliens  to engage as
licenses to  persons ineligible  to  citizenship  hawkers   and peddlers was  declared  void, 
was held  void, because the law conflicts with  because the discrimination bore  no 
Federal power over  immigration, and  because reasonable and  just relation to the act in
there is no public interest in the  mere claim  of  respect to which the classification was 
ownership' of the waters and the fish  in  them,  proposed. The case at bar  is radically
so there  was no  adequate justification for the  different,  and  the facts make  them so.   As
discrimination.  It further   added  that the law  we  already have said, aliens do, not naturally
was the outgrowth  of antagonism toward possess the sympathetic consideration and
persons of Japanese ancestry.   However, two regard for  customers with  whom  they come 
Justices dissented  on the theory that  fishing in  daily contact, nor  the   patriotic  desire to 
rights have been  treated  traditionally as help bolster  the  nation's economy,  except in 
natural resources.   In  Fraser  vs.  McConway so  far  as  it enhances  their  profit, nor the 
&  Tarley Co.,  82  Fed. 257 (Pennsylvania,  loyalty and allegiance  which the  national 
1897), a state law which imposed a tax on  owes to  the land.   These limitations  on  the 
every employer  of foreign-born unnaturalized qualifications of aliens have been shown on 
male persons over 21 years  of age, was many occasions  and  instances, especially in 
declared void because the  court found that times of  crisis and emergency.  We can do no
there was no reason for the  classification and better than  borrow the language  of
the tax was an arbitrary deduction from the  Anton vs. "Van Winkle,  297 F.  340, 342, to 
daily  wage  of an  employee. drive home the reality and significance of  the
distinction between the  alien and the national,
d.  Authorities contra explained. thus:
It  is  true that some  decisions of  the  Federal
court and  of  the  State  courts  in the  United "* * *.  It may be judicially  known, however,
States hold that the distinction  between aliens that aliens  coming into this country are without
and citizens is  not a valid ground for the intimate knowledge of our laws, customs, 
classification.   But in these decisions the laws and usages that  our own, people have. So it is
declared  invalid  were found to be either likewise known that certain, classes  of aliens
arbitrary, unreasonable or capricious,  or were are of different psychology from our fellow
the result or product of racial antagonism and  countrymen.  Furthermore, it is natural  and
hostility,  and  there  was  no question  of public reasonable to suppose that the foreign born, 
interest  involved or pursued.   In  Yu Cong whose allegiance  is first to their own country,
Eng vs. Trinidad, 70 L. ed. 1059 (1925), the and whose ideals of governmental environment
United States Supreme  Court declared  invalid and control have been engendered and formed
a  Philippine law making unlawful the keeping under entirely different regimes and political
of books of account in any language  other systems, have not  the same inspiration for the
than  English, Spanish or  any other local public weal, nor are  they as  well disposed 
dialect, but the main reasons for the decisions toward the United States, as those who  by
are: (1) that if Chinese  were driven out  of citizenship, are a part of the government itself. 
business there would be no other  system of  Further enlargement, is unnecessary.  I  have 
distribution, and  (2)  that the Chinese1  would said enough so that obviously it cannot  be
fall  prey  to all  kinds of  fraud, because they  affirmed with absolute confidence that the 
would be deprived  of  their  right to be advised Legislature was without plausible reason for 
of their business and to direct  its conduct.  The making the classification, and therefore
 HUMAN RIGHTS PRELIMFULLTEXT CASES
appropriate discrimination  against aliens  as it be  unduly oppressive."  (11 Am. Jur. Sec. 302,
relates  to  the subject of legislation. * *  *." pp.  1074-1075.)
VII The Due Process of Law Limitation In  the  case of  Lawton vs. Steele, 38 L. ed. 
385, 388, it was  also  held:
a. Reasonability, the test of the limitation;
determination by legislature decisive. "*  * *. To justify the state in  thus  interposing1
We now  come to due process as a  limitation  its authority in behalf of the public, it must 
on the exercise  of  the police  power.   It has appear, first, that the interests of the public
been  stated by the highest  authority in the generally, as distinguished  from those of a
United  States  that: particular class, require such  interference; and
second, that the means are reasonably
"* * *.  And the guaranty of due process, as has necessary for the  accomplishment of the
often been held, demands only that the  law purpose, and not unduly oppressive upon 
shall not be unreasonable, arbitrary or individuals.* * *."
capricious, and that the means  selected shall, Prata Undertaking Co.  vs. State Board of 
have a real and substantial relation to the  Embalming, 104  ALR,  389,  395,  fixes this 
subject sought to be attained. *  * *." lest  of constitutionality:

"In  determining" whether a given act of the

*             *             *             *             *             Legislature, passed in the exercise of  the
*             * police  power to  regulate the operation  of a
business, is or is not constitutional, one of  the
"So far  as the requirement of  due process is first questions to be considered by the  court  is
concerned and in the absence of other whether the power as exercised has a
constitutional restriction  a  state  is free to sufficient foundation in reason in connection
adopt whatever  economic  policy  may  with the matter involved, or  is  an arbitrary, 
reasonably be deemed  to  promote public oppressive,  and capricious use of that power,
welfare, and to enforce  that  policy by  without  substantial relation  to the health, 
legislation adapted to its purposed.  The courts safety, morals,  comfort, and general  "welfare
are without authority either to declare such of the public."
policy, or, when it is declared by the legislature, b. Petitioner's argument  considered.
to override it. If the laws passed are seen to Petitioner's main argument is that retail is a
have a reasonable relation to a proper common, ordinary occupation, one of those 
legislative purposed, and are neither arbitrary privileges long ago recognized as essential to
nor discriminatory, the requirements of due the orderly pursuit of happiness by free men;
process are satisfied, and judicial that it is a gainful and  honest occupation and
determination to that effect renders a therefore beyond the  power  of the  legislature 
court functus officio. * * *." (Nebbia vs New to prohibit and  penalize.   This  argument 
York, 78 L. ed. 940, 950, 957.) overlooks  fact and reality and rests on  an 
Another  authority  states  the  principle  thus: incorrect assumption and premise, i.e.,  that  in
this country  where  the occupation is engaged 
"* * *. Too much significance cannot be given in  by petitioner, it has been  so  engaged by
to the word 'reasonable' in considering the him, by the alien, in an honest creditable and
scope  of the police power in a constitutional unimpeachable manner, without harm  or injury
sense,  for the test  used to determine  the to the  citizens and without ultimate danger to 
constitutionality of the means employed by the their economic peace, tranquility and welfare.  
legislature  is to inquire whether the restrictions But the  Legislature has  found,  as we have
it imposes on rights secured to individuals by also  found and indicated, that the 'privilege
the Bill of Eights are unreasonable, and not has been so grossly abused by the  alien, thru
whether it imposes any restrictions on such the illegitimate use of pernicious designs and
rights.  *  * *." practices, that he now enjoys a monopolistic
control of the occupation and threatens a 
deadly  stranglehold on  the nation's  economy 
*             *             *             *             *             endangering the national  security in times of
*             * crisis and emergency.  

"* * *. A statute to be "within this power must
also  be reasonable in its  operation upon the
persons  whom it  affects, must not be for the
annoyance of  a particular class, and  must not
The real question at issue, therefore, is  not
that posed by petitioner,  which  overlooks 
and  ignores  the  facts and circumstances,  but
this,  Is the  exclusion in the future of aliens 
from the retail trade  unreasonable,  arbitrary
 HUMAN RIGHTS PRELIMFULLTEXT CASES
and capricious, taking into account the  may pursue. It is impossible  to conceive   that
illegitimate and  pernicious form and manner in legislation that  seeks to bring it about can
which the aliens have heretofore  engaged infringe the  constitutional limitation of due 
therein?  As thus  correctly  stated the answer process..  The  attainment  of a.  legitimate 
is clear.  The law in question is deemed aspiration of a people can never  be beyond
absolutely necessary to bring about the desired the limits of  legislative  authority.
legislative objective, i.e., to free national 
economy from alien  control and dominance.  It c. Law  expressly held  by Constitutional
is not  necessarily unreasonable  because  it .Convention  to be within the sphere  of 
affects private rights and. privileges  (11  Am. legislative action.
Jur. pp. 1080-1081.)  The test of The framers  of  the Constitution could not
reasonableness of a law is the appropriateness have intended  to  impose  the constitutional
or adequacy under  all circumstances of the restrictions of due process  on  the attainment
means adopted to carry out its purpose  into of  such  a noble  motive as freedom from
effect (Id.)   Judged  by this test, disputed economic control  and domination,  thru the
legislation, which  is not  merely reasonable but exercise of  the police  power.   The fathers  of
actually necessary,  must be considered not to  the . Constitution must have given to the
have infringed the constitutional limitation of legislature full authority and power to  enact
reasonableness. legislation that  would  promote the supreme
happiness of the people, their freedom and
The  necessity  of the  law  in question  is  liberty. On the precise issue now before us,
explained  in the  explanatory  note  that they  expressly made their voice clear;  they
accompanied  the  bill,  which later was  adopted a  resolution  expressing their belief
enacted  into  law: that the legislation  in question is  within the
scope  of the  legislative  power.  Thus  they 
"This  bill  proposes to  regulate  the  retail declared' in their Resolution:
business.  Its purpose is to prevent persons
who are not citizens of  the Philippines from " 'That it is the sense of the Convention that the
having a strangle hold upon our economic life.  public interest requires the nationalization of
If the persons who control this vital artery of retail trade; but  it abstains from approving the
our  economic life are the ones who owe no amendment introduced by the Delegate for
allegiance to this Republic, who have no Manila, Mr. Araneta, and others on this matter
profound devotion to our free institutions, and because it is convinced that the National
who have  no permanent  stake  in our people's Assembly is  authorized to promulgate a  law
welfare,  we are  not  really  the masters  of our which  limits to Filipino and  American  citizens 
own destiny. All aspects of our life, even our the privilege  to  engage  in the retail trade.' " 
national security, will be at the mercy of other (II Aruego, The Framing of the Philippine
people. Constitution, 662-663, quoted on pages 66 and
67 of the  Memorandum for the Petitioner.)
"In seeking to accomplish the foregoing It would do  well  to  refer to the nationalistic
purpose, we do not propose to deprive persons tendency manifested in various provisions of
who are not citizens of the Philippines of their the Constitution.  Thus in the preamble, a 
means of livelihood.   While this bill seeks to  principal objective is the  conservation of the
take  away from the hands of persons who are patrimony of the  nation and as corollary
not  citizens  of the Philippines  a power that thereto the provision  limiting  to citizens of the
can  bo wielded to paralyze all aspects of  our Philippines the exploitation,  development and 
national life and endanger our national  security utilization   of  its  natural resources.   And in 
it respects existing rights. Section  8  of Article XIV, it is provided that  "no
franchise, certificate,  or any  other  form of
"The approval of this bill is ¦necessary for our authorization for the operation of a public utility 
national survival." shall be  granted except  to citizens  of the
If  political  independence is  a  legitimate  Philippines."  The. nationalization of  the retail
aspiration  of a  people,  then  economic trade is  only  a continuance of  the 
independence  is none the less legitimate.   nationalistic protective  policy  laid  down  as  a
Freedom  and liberty  are not real and positive primary objective  of the Constitution.  Can  it
if the  people  are  subject  to  the  economic be  said that  a  law  imbued  with the  same
control and domination  of  others,  especially if purpose  and  spirit underlying  many of the 
not of their own race or country.  . The removal provisions  of the  Constitution is unreasonable,
and eradication of the shackles of foreign  invalid  and unconstitutional?
economic  control  and  domination,,  is  one  of
the noblest motives  that a national legislature The seriousness  of the  Legislature's concern
 HUMAN RIGHTS PRELIMFULLTEXT CASES
for  the plight of  the ' nationals  as manifested supposed  wisdom of the law which lies solely
in the  approval of the radical measure is,  within the legislative prerogative; they  do  not
therefore, fully justified.  It would have been import invalidity.
recreant to  its duties towards the country and 
its  people  would  it  view the  sorry  plight of  VIII. Alleged defect in  the title of the law
the nationals with complacency and refuse or A subordinate ground or reason for the alleged
neglect to adopt a remedy commensurate with invalidity of the law is the claim that the title
the demands of public interest and national thereof  is misleading or  deceptive, as it 
survival.  As the  repository of  the sovereign conceals the real purpose of  the bill, which is
power of  legislation, the  Legislature  was  in to  nationalize the retail  business  and  prohibit
duty bound  to face the problem and meet, aliens from engaging therein.   The
through adequate measures, the danger and constitutional provision which is claimed to be
threat that alien domination  of  retail trade violated in Section 21 (1)  of Article VI, which
poses to national economy. reads:

d.  Provisions of  law  not unreasonable. . "No bill which may be enacted into law shall
A cursory study of the provisions of the law embrace more than one subject which shall be
immediately reveals how tolerant, how expressed in the title of  the bill."
reasonable the Legislature has been.  The law  What the above provision prohibits is duplicity,
is  made prospective  and  recognizes the right that is, if its title completely fails to apprise the
and privilege of  those already  engaged in  legislators  or the public of the nature, scope
the  occupation to continue therein during the and consequences of  the  law or its operation
rest of their lives; and similar  recognition of the (I Sutherland, Statutory Construction, Sec.
right to  continue  is  accorded  associations  1707, p. 297.)   A cursory consideration of  the 
of  alians.  The right  or privilege  is denied to  title and the  provisions of the bill  fails to 
those only  upon conviction of certain offenses. show  the presence of duplicity.  It is true that
In the deliberations of  the Court on  this  case, the term "regulate" does not and may not
attention was called to the fact that the readily and at first glance convey the idea of
privilege should not have been  denied  to "nationalization" and "prohibition", which terms
children and  heirs of aliens now engaged in express the two main  purposes  and 
the retail trade.  Such provision would  defeat objectives  of  the law. But "regulate" is a
the law itself, its  aims and purposes.  Besides,  broader term  than  either prohibition  or
the exercise of legislative discretion  is not  nationalization.   Both of these  have always
subject  to  judicial  review. It is well settled been included within the term regulation.
that  the  Court will  not  inquire  into the
motives  of the Legislature,  nor  pass  upon  "Under the. title of an act to 'regulate', the sale
general matters of legislative  judgment.   The of  intoxicating liquors, the Legislature may
Legislature is  primarily  the judge of  the  prohibit the sale of intoxicating liquors."
necessity of an  enactment or of  any of its (Sweet vs. City of Wabash, 41 Ind., 7; quoted
provisions,  and every presumption is in favor  in page AX of Answer.)
of  its  validity,  and  though the  Court may
hold views inconsistent with the  wisdom of the "Within the meaning of the Constitution
law, it may not annul the legislation if not requiring that the subject of every act of the
palpably in excess of the legislative  power.   Legislature shall he stated in the title, the title
Furthermore,  the test  of the  validity of a  law 'To  regulate  the  sale of intoxicating  liquors,
attacked  as a violation  of due  process, is not etc." sufficiently expresses the subject of an act
its  reasonableness,  but  its,  prohibiting the sale of such  liquors to minors 
unreasonableness,  and  we  find the  and to persons  in  the habit of  getting
provisions  are  not  unreasonable.  These  intoxicated;  such matters being  properly
principles also answer  various other included within the subject of regulating the
arguments raised against the law, some of sale."   (Williams vs.  State, 48  Ind.  306, 308,
which are:  that  the  law does not  promote quoted in p. 42  of Answer.)
general welfare; that thousands of aliens would
be thrown out  of employment; that  prices will "The word  'regulate' is of broad import, and
increase because of the elimination of necessarily implies some degree  of 
competition; that there is no need for the restraint and prohibition of acts  usually done 
legislation; that adequate replacement is in connection with  the  thing to be regulated. 
problematical; that there may be  general While word regulate' does not ordinarily convey
breakdown; that there  would be  meaning of prohibit, there is  no absolute
repercussions  from  foreigners;  etc.  Many  of reason why it should not have such meaning
these arguments are  directed against the when used in delegating police power in
 HUMAN RIGHTS PRELIMFULLTEXT CASES
connection with a thing the best or only  Rights contains nothing more  than a mere 
efficacious regulation of which involves recommendation, or a common standard of
suppression."  (State  vs. Morton, 162 So. 718, achievement for all peoples and all nations (Id. 
182 La. 887,  quoted in p. 42 of Answer.) p. 39.) That  such is the import of  the United
The general rule is for the  use of general Nations Charter aid of the Declaration of
terms, in the title of a bill; it has  also been said  Human Rights can be inferred from the fact
that the title need not be an index to the entire that members of the United Nations
contents of  the  law (I Sutherland, Statutory Organization, such  as Norway and  Denmark,
Construction, Sec. 4803, p. 345.)   The above prohibit  foreigners from engaging in retail 
rule was followed when the title of the Act in trade,  and in most nations of the world laws 
question adopted the  more general term  against  foreigners engaged in domestic  trade
"regulate" instead of  "nationalize" or are adopted.
"prohibit".   Furthermore,  the law also contains
other rules for the regulation of the retail trade, The Treaty of Amity between the Republic of
which may not be included in the terms  the Philippines and  the Republic of China of
"nationalization" or "prohibition"; so were the April 18, 1947 is also claimed, to be violated by
title changed from "regulate" to  "nationalize" or the law in question.  All that the treaty
"prohibit", there would have been  many guarantees  is equality of treatment to the
provisions not falling within the scope of the Chinese nationals  "upon the same  terms as
title which would have made the  Act  invalid.   the nationals of any other  country."  But the
The use of  the term  "regulate", therefore, is in nationals of China  are not discriminated
accord with the principle governing the drafting against because nationals of all other
of statutes,  under which a simple or  general countries, except those of the United States,
term should be adopted in the title, which who are granted special rights by the
would include all other provisions found  in the Constitution, are all prohibited from engaging in
body of the Act. the retail trade.   But even supposing that the
law infringes upon the said treaty, the treaty is
One purpose of the constitutional directive that always subject to qualification or amendment
the subject of a bill should be embraced in its by  a  subsequent law (U. S. vs. Thompson,
title is to  apprise the legislators of the 258, Fed. 257, 260), and the same may never
purposes,  the nature and scope of its curtail  or restrict the scope of the  police 
provisions, and prevent the enactment into law power of the State (Palston vs. Pennsylvania,
of  matters which have not received the notice, 58 L. ed. 539.)
action and study of the legislators or of the
public.  In the case at bar it cannot be claimed 
that the legislators have not been apprised of X. Conclusion
the nature  of the law, especially the
nationalization and prohibition  provisions.  The Resuming what we have set forth above we
legislators took active interest in the discussion hold that the disputed  law was enacted to
of the law, and a great many of the persons remedy a real  actual threat and danger to 
affected by the prohibition in the law conducted national economy posed by alien dominance
a campaign against its approval.   It cannot be and control of the retail business  and free
claimed, therefore, that the reasons  for citizens and country from such dominance and
declaring the law invalid ever existed.  The control; that the enactment clearly falls within
objection must therefore, be overruled. the scope  of the police power of the  State,
thru which and by  which  it  protects its own
personality and insures its security and future;
IX. Alleged violation of international treaties that the law does not violate  the equal
and obligations protection  clause  of  the Constitution because
sufficient grounds exist for the distinction 
Another subordinate argument against the between alien and citizen  in the exercise  of 
validity  of the law is the supposed violation the occupation regulated,  nor the  due 
thereby of the Charter of the United Nations process of law  clause, because the law is
and of  the Declaration of Human Eights prospective in operation and recognizes the 
adopted by the United Nations General privilege of aliens already engaged in the
Assembly. We find no merit in  the  above  occupation and reasonably protects their
contention.  The  United Nations Charter privilege;  that the  wisdom and efficacy of the
imposes no strict or legal obligations regarding law to carry out its objectives appear to us to
the rights and freedom of their  subjects (Hans be plainly evident as a matter of fact it seems
Kelsen, The Law of the United Nations, 1951 not only appropriate but actually necessary and
ed. pp. 29- 32), and the Declaration of Human that in any case such matter falls within the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
prerogative of the Legislature, with whose them, insofar as  it affects  associations, 
power and discretion the Judicial  department partnerships   or corporations,  the capital  of
of the  Government may not interfere; that  the which is not  wholly owned by citizens of the
provisions of the law  are clearly embraced in Philippines,  and aliens,  who  are not and 
the title, and  this suffers from no  duplicity and have  not been engaged in the retail business. 
has not misled  the legislators or the segment I am, however,  unable to persuade myself that
of the population affected; and that it cannot it does not violate  said clauses insofar as the 
be  said to be void for supposed conflict with Act applies  to  associations  and partnerships
treaty obligations because no treaty has referred to in  "the  Act' and to aliens, who are 
actually been  entered into on the subject  and and have heretofore been engaged in said
the police power may not be  curtailed or business;   When they did engage in the retail
surrendered by any treaty or any other business there was no prohibition on or against
conventional agreement. them to  engage in it.  They assumed and
believed in good faith they were entitled to
Some members of the  Court  are of  the engage  in the business.  The Act  allows
opinion that the  radical effects  of  the law aliens to continue in business until their death
could  have been made  less harsh in  its or voluntary retirement from the business or
impact on the aliens.   Thus it is stated that forfeiture of their  license; and corporations,
more time should  have been given in the law associations or partnerships,  the capital  of
for the liquidation of existing  businesses when which is  not  wholly owned  by citizens of  the 
the time comes for them to dose.  Our legal Philippines  to  continue  in the business for a
duty, however, is merely to determine if the law period  of ten years from the date  of the
falls within the scope of legislative authority  approval of  the  Act (19 June 19S4)  or until 
and  does not transcend  the limitations  of due the  expiry of the  term of the existence of the
process and equal  protection  guaranteed  in association or partnership  or corporation,
the Constitution. Remedies  against  the  whichever  event comes first.   The prohibition
harshness  of the law  should  be addressed  to on corporations, the capital of which  is not
the Legislature; they are beyond our  power wholly  owned by citizens of the  Philippines, 
and jurisdiction. to engage in the  retail business for a  period of
more than ten years from the date of the
The petition is hereby denied, with costs approval of  the  Act or  beyond the term of 
against petitioner. their corporate existence,  whichever event
comes first, is  valid and lawful, because  the 
Paras, C. J., Bengzon, Reyes, A., Bautista continuance  of the existence of such
Angela, Concepcion, Reyes, J. B. L., corporations is subject to whatever the
Endencia, and Felix, J.J., concur. Congress may impose reasonably upon them
by subsequent legislation[1] But the prohibition
to engage  in the retail business by 
associations  and partnerships, the capital of
which is not wholly owned by citizens  of the
Philippines, after ten years from the date of the
approval  of the Act, even before the end of the
term of their existence as  agreed upon by the 
associates  and partners, and by alien heirs to
whom the retail business is transmitted by the
CONCURRING  AND DISSENTING
death of an alien engaged  in the business, or 
by his executor  or administrator,  amounts to 
a deprivation of their property without  due
process of law.  To  my  mind,  the ten-year
PADILLA,  J., period from the date of the approval of the Act
or until the expiration of the term of the
I  agree to the proposition, principle or rule  existence of the association and  partnership,
that  courts may not Inquire  into the wisdom of whichever event comes first, and the six-
an Act passed by the Congress  and duly month  period granted  to  alien heirs of a
approved  by the  President of the Republic.  deceased alien, his  executor  or administrator, 
But the rule  does not preclude courts  from  to  liquidate the business, do not cure the
inquiring and determining whether the Act defect of the law, because the effect of the
offends against a provision or provisions of the prohibition is to compel them to sell or dispose
Constitution.  I  am satisfied  that the Act of their business.  The price obtainable  at 
assailed as  violative of the due process of law such forced sale of the business would be
and the equal protection of  the laws clauses  inadequate to  reimburse and compensate the 
of the Constitution does not  infringe  upon
 HUMAN RIGHTS PRELIMFULLTEXT CASES
associates or partners of the  association or 
partnership, and the alien heirs of a deceased
alien, engaged in the retail business for the
capital invested in it.  The stock of merchandise
bought and sold at retail does not alone
constitute  the business.  The goodwill that 
the  association, partnership and the alien had
built  up during a long period of effort,  patience
and perseverance forms part of such
business.  The constitutional  provisions  that People vs. Cuizon, GR. No. 109287
no person shall be deprived of his property
without due process of law [1] and that no
person shall be denied the equal protection of  326 Phil. 345
the laws[2] would have no meaning as applied
to associations  or partnerships and alien heirs
of an alien engaged in the retail business if PANGANIBAN, J.:
they were to be compelled to sell or dispose of
In deciding the case at bench, the Court
their business  within  ten  years from the  date
reiterates doctrines on illegal searches and
of the approval of the Act and  before the end
seizures, and the requirements for a valid
of the term of the existence of the  associations
warrantless search incident to a valid
and partnerships as agreed upon by the
warrantless arrest. While the Court appreciates
associates and partners and within  six months
and encourages pro-active law enforcement, it
after  the death of their predecessor-in-interest.
nonetheless upholds the sacredness of
constitutional rights and repeats the familiar
The authors of the Constitution were vigilant,
maxim, "the end never justifies the means."
careful and zealous in the safeguard of the
ownership of private agricultural lands which
This is an appeal from the Decision[1] dated
together with  the lands of the  public domain
January 5, 1993 Criminal Case No. 92-0230) of
constitute the priceless patrimony and
the Regional Trial Court, Branch 116,[2] Pasay
mainstay of the nation; yet, they did not deem 
City finding appellants guilty of violating
it wise  and prudent to deprive  aliens and their 
Section 15 of R.A. 6425, otherwise known as
heirs of  such lands.[3]
the Dangerous rugs Act of 1972.
For these  reasons, I  am of the  opinion  that
On March 10, 1992, an Information[3] was filed
section 1 of the  Act, insofar as  it compels 
against the appellants charging them as
associations  and partnerships referred to
follows:
therein to wind  ujp their retail business within
ten years from the date of the approval of the
Act even  before the expiry of the term of their
"That on or about February 21, 1992 in Pasay
existence as agreed upon  by the associates
City, Philippines and within the jurisdiction of
and partners  and section 3 of the Act, insofar
this Honorable Court, the above-named
as it compels the  alien heirs of a deceased
accused, conspiring, confederating and
alien engaged in the retail business in his
mutually helping one another, did then and
lifetime, his executor or administrator, to
there, willfully, unlawfully and feloniously carry
liquidate the business, are invalid, for they 
and transport into the country, without lawful
violate the due process of law and the equal
authority, 16 kilograms, more or less, of
protection of the laws clauses of the
METHAMPHETAMINE HYDROCHLORIDE,
Constitution.
also popularly known as 'SHABU,' a regulated
drug.

CONTRARY TO LAW."

Upon arraignment, appellant Antolin Cuizon,

assisted by counsel de parte, pleaded not
guilty. During the arraignment of appellants
Paul Lee and Steve Pua, the latter translated
the Information into Chinese-Cantonese for the
understanding of appellant Lee, who does not
speak nor understand English, Pilipino or any
other Philippine dialect. Both of them, duly
 HUMAN RIGHTS PRELIMFULLTEXT CASES
assisted by their counsel, also pleaded not
guilty.[4] Trial ensued and on January 5, 1993,
the court a quo found appellants guilty as
charged and rendered the following disposition:
[5]
"WHEREFORE, accused Antolin Cuizon y
Ortega, Steve Pua y Clofas alias Stephen Po y
Uy or Tommy Sy, and Paul Lee y Wong, alias
Paul Leung, are found guilty beyond
reasonable doubt of transporting, without legal
authority, methamphetamine hydrochloride, or
'shabu,' a regulated drug, as charged in the
aforequoted Information; and they are each
sentenced to suffer the penalty of life
imprisonment and to pay a fine of P20,000.00.
"The methamphetamine hydrochloride or
'shabu' involved in this case is declared
forfeited in favor of the government and is
ordered turned over to the Dangerous Drug
Board for proper disposal."
The Facts
According to the Prosecution
The facts as summarized by the trial court and
adopted by the Solicitor General, who added
the page references to the transcript of
stenographic notes as indicated in brackets,
are as follows:[6]
"In January 1992, the Reaction Group of the
National Bureau of Investigation (NBI) gathered
an information regarding the drug activities of
accused Antolin Cuizon y Ortega and his wife,
Susan Cuizon. A surveillance was conducted
on them. The residence of the spouses was
traced to Caloocan City (tsn, May 19, 1992, pp.
17-18, 21).
"In the morning of February 21, 1992, the
Reaction Group received a report from its
informant in Hong Kong that accused Cuizon,
together with his wife, was arriving on the same
day at the Ninoy Aquino International Airport
(NAIA) in Pasay City, Metro Manila, from the
British crown colony, carrying with him a big
quantity of 'shabu.' A team was organized to
intercept the suspects. Heading the team was
Jose Yap, with Ernesto Diño, Marcelino
Amurao, Jose Bataller and Alfredo Jacinto, as
members. Some belonged to the Narcotics
Division and the others to the Reaction Group
of the NBI (tsn, May 19, 1992, pp. 4, 18).
"Arriving at the NAIA shortly before 12:00 noon
of February 21, 1992, Diño positioned himself
at the Arrival Area, while Yap and the other
members of the team posted themselves at the
parking area of the airport. At about 12:45 in
the afternoon of the same date, accused
Cuizon and his wife, who had just returned
from Hong Kong, after passing through the
Immigration and Customs Areas at the NAIA,
proceeded to the Arrival Area of the airport
preparatory to their boarding a car. While there,
accused Cuizon, together with his wife, handed
four (4) travelling bags to accused Steve Pua y
Clofas and accused Paul Lee y Wong, who
were at the vicinity of the Arrival Area. Accused
Pua and Lee loaded the bags in a taxicab
which they boarded in leaving the airport.
Accused Cuizon and his wife took another
vehicle (tsn, May 19, 1992, pp. 4-5, 8-9).
"At this juncture, Diño, who was observing the
activities of the accused, radioed the group of
Yap at the parking area, describing the vehicle
boarded by accused Pua and Lee so that Yap
and his companions could apprehend the two.
However, the message of Diño was not
completely received by his teammates as the
radio he was using ran short of battery power
(tsn, May 19, 1992, pp. 25-26).
"Immediately after the vehicle boarded by Pua
and Lee had left, Diño proceeded to the place
where his companions were stationed for the
purpose of giving assistance to them, believing
that they were already in the process of
apprehending accused Pua and Lee. When he
realized that the two accused were not
apprehended, Diño told the group of Yap to
follow him as he was following the vehicle
taken by Pua and Lee which, according to an
earlier tip he learned, was proceeding to the
Manila Peninsula Hotel in Makati, Metro Manila
(tsn, May 19, 1992 pp. 25-26; tsn, May 21,
1992 pp. 6, 15).
"Upon arriving at about 2:00 p.m. of the same
date of February 21, 1992, in the Manila
Peninsula Hotel, in whose premises the taxicab
boarded by accused Pua and Lee entered,
Diño and the other members of the team
coordinated with Cot. Regino Arellano, Chief
Security Officer of the hotel, for the purpose of
apprehending the two accused. A verification
made by the Chief Security Officer showed that
accused Pua and Lee occupied Room 340 of
the hotel. The two accused allowed Diño and
Yap, together with Col. Arellano, to enter their
room. Found inside Room 340 were four (4)
 HUMAN RIGHTS PRELIMFULLTEXT CASES
travelling bags, which were similar to the ones
handed by accused Cuizon to accused Pua
and Lee at the Arrival Area of the NAIA. After
having introduced themselves as NBI agents,
Diño and Yap were permitted by accused Pua
and Lee to search their bags in the presence of
Col. Arellano. The permission was made in
writing.(Exh. I). Three (3) of the four (4) bags
each yielded a plastic package containing a
considerable quantity of white crystalline
substance suspected to be methamphetamine
hydrochloride or 'shabu.' Each package was
sandwiched between two (2) pieces of board
which appear to be 'lawanit' placed at the
bottom of each of the three (3) bags. The
suspected 'shabu' contained in one bag
weighed 2.571 kilos, that found in the other had
a weight of 2.768 kilos, and the suspected
'shabu' retrieved from the third bag weighed
2.970 kilos. Pua and Lee were then
apprehended by Diño and his companions (tsn,
May 20, 1992, pp. 9-13; tsn, May 7, 1992, p. 9,
Exh. "F-2", p. 75, Records).
"Immediately thereafter, Diño and the other
members of the team proceeded to the house
of accused Cuizon in Caloocan City, taking
with them accused Pua and Lee and the bags
with their contents of suspected dangerous
drugs. They reached the place at about 5:50 in
the afternoon of the same date of February 21,
1992. Retrieved from accused Cuizon in his
residence was another bag also containing a
white crystalline substance weighing 2.695
kilos, likewise believed to be
methamphetamine hydrochloride or 'shabu.' In
addition, a .38 Cal. firearm was taken from
accused Cuizon (tsn, May 19, 1992, pp. 10-
11).
"Pua, Lee, Cuizon and his wife were then
brought by the arresting officers to the NBI
headquarters at Taft Avenue, Manila, for
further investigation. They were subsequently
referred to the Prosecution Division of the
Department of Justice for inquest. However,
only the present three accused were charged
in court (tsn, May 19, 1992, pp. 12-13, 16-17).
"In the meantime, at about 5:30 p.m. of the
same date of February 21, 1992, Joselito
Soriano, roomboy of the Manila Peninsula
Hotel, while cleaning Room 340, observed that
a portion of the ceiling was misaligned. While
fixing it, he discovered in the ceiling a laundry
bag containing suspected 'shabu' of more than
five (5) kilos (Exh. 'X', p. 110). Informed of the
discovery while they were already in their office
in the NBI, Yap and some companions
returned to the hotel. The suspected 'shabu'
was turned over to them (tsn, May 20, 1992,
pp. 19-22).
"When examined in the Forensic Chemistry
Section of the NBI, the white crystalline
substance taken from the three (3) travelling
bags found in the room of accused Pua and
Lee in the Manila Peninsula Hotel, the white
crystalline substance retrieved from the bag
confiscated from accused Cuizon in his house
in Caloocan City, and the white crystalline
substance hidden in the ceiling of Room 340 of
the hotel were confirmed to be
methamphetamine hydrochloride or 'shabu,' a
regulated drug. (Board Regulation No. 6, dated
December 11, 1972, of the Dangerous Drugs
Board) (tsn, May 7, 1992, p. 12)."
The Defense's Version(s)
Appellant Pua, on his part, interposed the
defense of alibi. On direct examination, he
testified that at the time of the alleged
commission of the offense, he and his co-
appellant Lee were in their room at the Manila
Peninsula Hotel.7 His version of what
happened on February 21, 1992 can be
summarized as follows:
At around 9:30 in the morning, he
accompanied appellant Paul Lee to check-in at
the Manila Peninsula Hotel for and in behalf of
the latter's personal friend named Leong
Chong Chong or Paul Leung, who was
expected to arrive that evening because of a
delayed flight. Appellant Pua was engaged by
appellant Lee to act as interpreter as Lee does
not know how to speak English and the local
language.[8]
While in Room 340, past 1:00 in the afternoon,
they received a call from the lobby informing
them of the arrival of Paul Leung's luggage. At
Pua's instructions, the said luggage were
brought to the room by a bellboy. Thereafter,
two persons knocked on their door,
accompanied by a "tomboy" and a thin man
with curly hair. The two men identified
themselves as NBI agents and asked appellant
Pua to let them in. He declined since he did not
know who they were. However, when Col.
Arellano, the Chief Security Officer of the hotel,
arrived and identified the two NBI agents, he
and Lee relented and permitted them to enter.
Thereafter, he and Lee were told by the agents
to sign a piece of paper. Made to understand
that they were merely giving their consent for
the agents to enter their room, Pua and Lee
signed the same. Whereupon, the agents told
 HUMAN RIGHTS PRELIMFULLTEXT CASES
them that they will open Paul Leung's bags.
Again appellant Pua refused, saying that the
bags did not belong to them. Just the same,
the agents, without appellants Pua and Lee's
consent, opened the bags and found the
shabu. Pua and Lee were then apprehended
and brought to the NBI headquarters.[9]
Appellant Cuizon, on the other hand, flatly
rejected the prosecution's version of the
incident. While admitting that on February 21,
1992, he and his wife Susan did arrive from
Hong Kong with several pieces of luggage, he
denied that he met Pua and Lee at the arrival
area of the airport, much less passed to them
the four pieces of luggage. According to him,
only his two-year old son, accompanied by his
cousin, Ronald Allan Ong, met them outside
the airport. Ong fetched them from the airport
and brought them to their home in Caloocan
City. They arrived at their house around 3:00 in
the afternoon.[10]
About two hours later, while he was resting
together with his wife and son on his bed, two
NBI agents suddenly barged in and poked a
gun at him. They manhandled him in front of
his wife and son. His hands were tied with a
necktie and he was forcibly brought out of their
house while the NBI agents ransacked the
place without any warrant. He, his wife Susan,
and his cousin Ronald Allan Ong, were
afterwards brought to the NBI Headquarters in
Manila and there the NBI agents continued
mauling him.[11]
Appellant Cuizon's wife Susan, his cousin
Ronald Allan Ong, and his nephew Nestor
Dalde, testified in his favor basically reiterating
or confirming his testimony.[12]
Unfortunately, appellant Paul Lee, who does
not speak or understand a word of English or
Pilipino and only knows Chinese-Cantonese,
was not able to take the witness stand for lack
of an interpreter who would translate his
testimony to English. In the hearing set on
October 28, 1992, the last trial date allotted to
the defense for the reception of Lee's
testimony, his counsel, although notified of the
proceedings, did not appear. Thus, the trial
court deemed him and Pua to have waived
their right to present additional evidence,[13] and
the case was considered submitted for decision
after the filing of memoranda. The counsel for
Pua and Lee did not ask for the reconsideration
of such ruling; neither did he submit any
memorandum. Only accused Cuizon, who was
assisted by another counsel, was able to
submit his memorandum.
The Issues
In their brief, appellants Pua and Lee made the
following assignments of errors:[14]
"I. The trial court erred in finding conspiracy
among the accused.
"II. The trial court erred in giving credence to
the testimonies of prosecution witnesses
Marcelino Amurao, Jose Yap and Ernesto Diño
despite contradictions made on material points.
"III. The trial court erred in not giving accused
Paul Lee the opportunity to present his
evidence in his defense in violation of his
constitutional right to due process."
Appellant Cuizon, in a separate brief,
essentially reiterates the first two assignments
of errors above-quoted, and in addition
challenges the legality and validity of his
warrantless arrest and the search and seizure
incidental thereto.[15]
As this Court sees it, the resolution of this case
hinges on the pivotal question of the legality of
the arrest and search of herein appellants
effected by the NBI operatives. Put differently,
were the warrantless arrests and the
warrantless searches conducted by the NBI
legal and constitutional?
The answer to this threshold question
determines whether the judgment of the court a
quo will stand or fall. Consequently, there is a
need to resolve first this issue before
endeavoring to consider the other issues raised
by appellants.
A necessary side issue to be considered is,
assuming the searches and arrests to have
been illegal, whether failure by appellants Pua
and Lee to explicitly assign the same as errors
before this Court amounted to a waiver of their
constitutional rights against such illegal
searches and arrests.
The Court's Ruling
General Rule on Warrantless
Arrests, Searches, & Seizures
Well entrenched in this country is the rule that
 HUMAN RIGHTS PRELIMFULLTEXT CASES
no arrest, search and seizure can be made
without a valid warrant issued by a competent
judicial authority. So sacred is this right that no
less than the fundamental law of the
land[16] ordains it:
"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."
It further decrees that any evidence obtained in
violation of said right shall be inadmissible for
any purpose in any proceeding. [17]
However, the right against warrantless arrest
and search and seizure is not absolute. Thus,
under Section 5 of Rule 113 of the Revised
Rules of Court, an arrest without a warrant may
be lawfully made by a peace officer or a private
person:
"a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
"(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested
has committed it; and
"(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving final
judgment or temporarily confined while his
case is pending, or has escaped while being
transferred from one confinement to another."
On the occasion of any of the aforementioned
instances of legitimate arrest without warrant,
the person arrested may be subjected to a
search of his body and of his personal effects
or belongings, "for dangerous weapons or
anything which may be used as proof of the
commission of an offense," likewise without
need of a search warrant.[18]
However, where a person is searched without
a warrant, and under circumstances other than
those justifying a warrantless arrest, as
discussed above, upon a mere suspicion that
he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed
a crime has been committed by him, then the
search made of such person as well as his
arrest are deemed illegal.[19] Consequently, any
evidence which may have been obtained
during such search, even if tending to confirm
or actually confirming such initial suspicion, is
absolutely inadmissible for any purpose and in
any proceeding,[20] the same being "the fruit of
the poisonous tree."[21] Emphasis is to be laid
on the fact that the law requires that the search
be incident to a lawful arrest, in order that the
search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest
must precede the search of a person and his
belongings. Were a search first undertaken,
then an arrest effected based on evidence
produced by the search, both such search and
arrest would be unlawful, for being contrary to
law.
The Instant Case Does Not Fall Under
The Exceptions for Warrantless Searches, etc.
Re-assessing the factual backdrop of the case
at bench, this Court cannot agree with and
accept the conclusion of the trial court that the
appellants were caught in flagrante
delicto which would justify the search without a
warrant. The shaky reasoning of the court a
quo gives away the baselessness of its findings
and conclusion:
"x x x the search conducted on their bags in
the hotel room could still be regarded as valid
for being incidental to a lawful arrest. x x x The
arrest of accused Pua and Lee without a
warrant of arrest was lawful, as they could be
considered to have committed the crime of
transporting 'shabu' in the presence of the
arresting officers from the time they received
the bags containing the regulated drug in the
airport up to the time they brought the bags to
the hotel. Or their arrest without a warrant was
legal as falling under the situation where an
offense had in fact just been committed, and
the arresting officers had personal knowledge
of facts indicating that the said accused were
the ones who committed it. x x x"[22]
Scrutinizing the provisions of Sec. 5 of Rule
113 of the Rules of Court on lawful arrests
without warrant, we note that par. (c) of said
section is obviously inapplicable, the appellants
 HUMAN RIGHTS PRELIMFULLTEXT CASES
not being escapees from a penal institution at
the time of arrest. Par. (a) on the other hand
requires that the person be arrested (i) after he
has committed or while he is actually
committing or is at least attempting to commit
an offense, (ii) in the presence of the arresting
officer(s). These requirements are not present
in the case at bench, for at the time of their
arrest, appellants Pua and Lee were merely
resting in their hotel room, and appellant
Cuizon for his part was in bed resting with his
wife and child inside his home. No offense had
just been committed, or was being actually
committed or being attempted by any of the
accused in the presence of the lawmen.[23]
Par. (b) of the same provision is likewise
inapplicable since its equally exacting
requirements have also not been met. The
prosecution failed to establish that at the time
of the arrest, an offense had in fact just been
committed and the arresting officers had
personal knowledge of facts indicating that the
accused-appellants had committed it. Appellant
Cuizon could not, by the mere act of handing
over four pieces of luggage to the other two
appellants, be considered to have committed
the offense of "carrying and transporting"
prohibited drugs. Under the circumstances of
the case, there was no sufficient probable
cause for the arresting officers to believe that
the accused were then and there committing a
crime. The act per se of handing over the
baggage, assuming the prosecution's version
to be true, cannot in any way be considered a
criminal act. It was not even an act performed
under suspicious circumstances as indeed, it
took place in broad daylight, practically at high
noon, and out in the open, in full view of the
public.[24] Furthermore, it can hardly be
considered unusual, in an airport setting, for
travellers and/or their welcomers to be passing,
handing over and delivering pieces of baggage,
especially considering the somewhat obsessive
penchant of our fellow countrymen for sending
along ("pakikipadala") things and gifts through
friends and relatives. Moreover, one cannot
determine from the external appearance of the
luggage that they contained "shabu" hidden
beneath some secret panel or false bottom.
The only reason why such act of parting with
luggage took on the color and dimensions of a
felonious deed, at least as far as the lawmen
were concerned, was the alleged tip that the
NBI agents purportedly received that morning,
to the effect that appellant Cuizon would be
arriving that same day with a shipment of
shabu. To quote from another decision of like
import, "(A)ll they had was hearsay information
(from the telephone caller), and about a crime
that had yet to be committed." [25]
In the leading case of People vs. Burgos,[26] this
Court laid down clear guidelines, as follows:
"Under Section 6(a) of Rule 113, the officer
arresting a person who has just committed, is
committing, or is about to commit an offense
must have personal knowledge of that fact. The
offense must also be committed in his
presence or within his view. (Sayo v. Chief of
Police, 80 Phil. 859)."
The same decision is highly instructive as it
goes on to state:
"The Solicitor General is of the persuasion that
the arrest may still be considered lawful under
Section 6(b) using the test of reasonableness.
He submits that the information given by Cesar
Masamlok was sufficient to induce a
reasonable ground (for belief) that a crime has
been committed and that the accused is
probably guilty thereof.
"In arrests without a warrant under Section
6(b), however, it is not enough that there is
reasonable ground to believe that the person to
be arrested has committed a crime. A crime
must in fact or actually have been committed
first. That a crime has actually been committed
is an essential precondition. It is not enough to
suspect that a crime may have been
committed. The fact of the commission of the
offense must be undisputed. The test of
reasonable ground applies only to the identity
of the perpetrator.
"In this case, the accused was arrested on the
sole basis of Masamlok' s verbal report.
Masamlok led the authorities to suspect that
the accused had committed crime. They were
still fishing for evidence of a crime not yet
ascertained. The subsequent recovery of the
subject firearm on the basis of information from
the lips of a frightened wife cannot make the
arrest lawful. x x x"
The foregoing doctrine was affirmed in the
case of Alih vs. Castro,[27] where this Court
ruled that "x x x under the Revised Rule 113,
Section 5(b), the officer making the arrest must
have personal knowledge of the ground
therefor as stressed in the recent case
of People v. Burgos."
In the case at bench, not only did the NBI
agents rely merely on hearsay information
 HUMAN RIGHTS PRELIMFULLTEXT CASES
("tips"), but they were completely uncertain that
anything was really "going down" that day. That
much is undisputed, from a reading of the
testimony of Agent Diño:
Now, but you were informed by the
personnel of the airport that the spouses
"Q -Cuizon were going to bring in or transport
into the country shabu on February 21,
1992?
A - Yes, sir.
Now, you were not sure or your group was
not sure that they indeed would bring in
Q-
shabu, is it not? That was only the
information relayed to your group?
A - Yes, sir.
xxx xxx xxx
But then you were jumping ahead. You
Q - were not sure is it not that they were
bringing in shabu?
A - Yes, sir." (TSN, May 19, 1992, pp. 37-38.)
In his testimony, NBI Investigator Jose Justo
Yap, who was with Agent Diño during the
operation, likewise admitted in substantially the
same tenor their uncertainty regarding the
commission of the offense (cf. TSN, May 20,
1992, pp. 29 & 34).
We therefore hold that under the
circumstances obtaining, the prosecution failed
to establish that there was sufficient and
reasonable ground for the NBI agents to
believe that appellants had committed a
crime at the point when the search and arrest
of Pua and Lee were made; hence, said search
and arrest do not come under the exception in
par. (b) of Sec. 5 of Rule 113, and therefore
should be deemed illegal. We might add that
the search conducted on Pua and Lee was not
incident to a lawful warrantless arrest, having
preceded the same and produced the
justification therefor. On the other hand, the
search on Cuizon' s residence, without the
benefit of a search warrant, was clearly illegal
and the 'shabu' seized thereat cannot but be
considered inadmissible in evidence. More on
these points later.
Comparison Between The Present Case
and Earlier Decisions of This Court
For clarity's sake, it is imperative to compare
the foregoing holding with previous decisions
by this Court in various drug cases, in which
apparently different conclusions were reached,
in order to distinguish them from the instant
case and avoid any potential misunderstanding
of the foregoing holding as well as the
constitutional and legal principles on which it is
based.
1. In People vs. Claudio,[28] the accused, a
passenger on a bus bound for Baguio City, was
arrested by a policeman on the same bus
because of the distinctive odor of marijuana
emanating from the plastic bag she was
carrying. The Court held the warrantless arrest
under the circumstances to be lawful, the
search justified and the evidence thus
discovered admissible in evidence.
2. In People vs. Tangliben,[29] the accused,
carrying a travelling bag at a bus terminal, was
noticed by lawmen to be acting suspiciously,
and was also positively fingered by an informer
as carrying marijuana, and so he was accosted
by policemen who happened to be on a
surveillance mission; the lawmen asked him to
open the bag, in which was found a package of
marijuana leaves. It was held that there was a
valid warrantless arrest and search incident
thereto. The Court in effect considered the
evidence on hand sufficient to have enabled
the law enforcers to secure a search warrant
had there been time, but as the case
"presented urgency," and there was actually no
time to obtain a warrant since the accused was
about to board a bus, and inasmuch as an
informer had given information "on the spot"
that the accused was carrying marijuana, the
search of his person and effects was thus
considered valid.
3. In Posadas vs. Court of Appeals,[30] the
accused was seen acting suspiciously, and
when accosted by two members of the Davao
INP who identified themselves as lawmen, he
suddenly fled, but was pursued, subdued and
placed in custody. The buri bag he was
carrying yielded an unlicensed revolver, live
ammunition and a tear gas grenade. This Court
upheld his conviction for illegal possession of
firearms, holding that there was under the
circumstances sufficient probable cause for a
warrantless search.
4. In People vs. Moises Maspil, Jr., et al.,
[31]
 agents of the Narcotics Command set up a
checkpoint on a highway in Atok, Benguet, to
screen vehicular traffic on the way to Baguio
City due to confidential reports from informers
that Maspil and a certain Bagking would be
transporting a large quantity of marijuana. At
about 2 a.m. of November 1, 1986, the two
suspects, riding a jeepney, pulled up to the
checkpoint and were made to stop. The officers
noticed that the vehicle was loaded with some
sacks and tin cans, which, when opened, were
seen to contain marijuana leaves. The Court
 HUMAN RIGHTS PRELIMFULLTEXT CASES
upheld the search thus conducted as being
incidental to a valid warrantless arrest.
5. In People vs. Lo Ho Wing, et al.,[32] the Court
ruled that the search of the appellants' moving
vehicles and the seizure of 'shabu' therefrom
was legal, in view of the intelligence
information, including notably, clandestine
reports by a planted deep penetration agent or
spy who was even participating in the drug
smuggling activities of the syndicate, to the
effect that appellants were bringing in
prohibited drugs into the country. The Court
also held that it is not practicable to secure a
search warrant in cases of smuggling with the
use of a moving vehicle to transport
contraband, because the vehicle can be quickly
moved out of the locality or jurisdiction in which
the warrant must be sought.
6. In People vs. Malmstedt,[33] NARCOM
agents stationed at Camp Dangwa, Mountain
Province, set up a temporary checkpoint to
check vehicles coming from the Cordillera
Region, due to persistent reports that vehicles
from Sagada were transporting marijuana and
other drugs, and because of particular
information to the effect that a Caucasian
would be travelling from Sagada that day with
prohibited drugs. The bus in which accused
was riding was stopped at the checkpoint.
While conducting an inspection, one of the
NARCOM men noticed that accused, the only
foreigner on board, had a bulge at the waist
area. Thinking it might be a gun, the officer
sought accused's passport or other
identification papers. When the latter failed to
comply, the lawman directed him to bring out
whatever it was that was bulging at his waist. It
was a pouch bag which, when opened by the
accused, was found to contain packages of
hashish, a derivative of marijuana. Invited for
questioning, the accused disembarked from the
bus and brought along with him two pieces of
luggage; found inside were two teddy bears
stuffed with more hashish. The Court held that
there was sufficient probable cause in the
premises for the lawmen to believe that the
accused was then and there committing a
crime and/or trying to hide something illegal
from the authorities. Said probable cause arose
not only from the persistent reports of the
transport of prohibited drugs from Sagada, and
the "tip" received by the NARCOM that same
day that a Caucasian coming from Sagada
would be bringing prohibited drugs, but also
from the failure of the accused to present his
passport or other identification papers when
confronted by the lawmen, which only triggered
suspicion on the part of the law enforcers that
accused was trying to hide his identity, it being
the normal thing expected of an innocent man
with nothing to hide, that he readily present
identification papers when asked to do so. The
warrantless arrest and search were thus
justified.
In all the cases discussed hereinabove, there
were facts which were found by the Court to
provide probable cause justifying warrantless
arrests and searches, i.e., distinct odor of
marijuana, reports about drug transporting or
positive identification by informers, suspicious
behaviour, attempt to flee, failure to produce
identification papers, and so on. Too, urgency
attended the arrests and searches because
each of the above-mentioned cases involved
the use of motor vehicles and the great
likelihood that the accused would get away
long before a warrant can be procured. And,
lest it be overlooked, unlike in the case before
us now, the law enforcers in the
aforementioned cases acted immediately on
the information received, suspicions raised,
and probable causes established, and effected
the arrests and searches without any delay.
Unexplained Matters in the Instant Case
In the case before us, the NBI agents testified
that they purportedly decided against arresting
the accused-appellants inside the airport as
they allegedly wanted to discover the identities
of the airport immigration, security or customs
personnel who might be protecting the accused
or otherwise involved in the drug smuggling
activities, and also in order to avoid the
possibility of an armed encounter with such
protectors, which might result in injuries to
innocent bystanders. These excuses are
simply unacceptable. They are obviously after-
thoughts concocted to justify their rank failure
to effect the arrest within constitutional limits.
Indeed, the NBI men failed to explain how
come they did not apprehend the appellants at
the moment Cuizon handed over the baggage
to Pua and Lee, or even afterwards, in relative
safety. Such arrest would have been consistent
with the settled constitutional, legal and
jurisprudential precedents earlier cited.
The spouses Cuizon had already passed
through the airport security checks allegedly
with their contraband cargo undetected in their
luggage. Apparently, the NBI agents did not
see (as indeed they did not testify that they
saw) anyone from the airport immigration,
security or customs who could have escorted
the spouses Cuizon, and therefore, there was
no danger of any "live ammo encounter" with
 HUMAN RIGHTS PRELIMFULLTEXT CASES
such group(s). The alleged drug couriers had
already made their way outside the NAIA, had
allegedly made contact with the accused Pua
and Lee, and were in the very act of handing
over the luggage to the latter. Why the NBI
men did not move in and pounce on them at
that very instant has not been satisfactorily
explained. Instead, one of the agents, Diño,
merely watched as Pua and Lee loaded the
luggage into a cab and took off for Makati.
Furthermore, it taxes the imagination too much
to think that at the most critical and climactic
moment, when agent Diño radioed his
companions for help to close in on the
suspects, the most amazing and stupendous
thing actually happened: Murphy's Law kicked
in - whatever could go wrong, did, and at the
worst possible time - the batteries in Agent
Diño's hand-held radio supposedly went dead
and his message was not transmitted. Thus the
departing Pua and Lee proceeded merrily and
unimpeded to the Peninsula Hotel, while the
spouses Cuizon simultaneously sped off to
their residence in Caloocan City, leaving the
lawmen empty-handed and scampering madly
to catch up. Such absolutely astounding and
incredible happenstance might find a place in a
fourth-rate movie script, but expecting the
courts to swallow it- hook, line and sinker - is
infinite naivete, if not downright malevolence.
Even granting arguendo that the radio really
went dead, nevertheless, the agents were not
thereby rendered helpless or without recourse.
The NBI agents, numbering five in all, not
counting their so-called informant, claimed to
have piled into three cars (TSN, May 19, 1992)
and tailed the suspects Pua and Lee into
Makati, keeping a safe two-car distance behind
(TSN, May 20, 1992). The lawmen and the
prosecutors failed to explain why the agents
did not intercept the vehicle in which Pua and
Lee were riding, along the way, pull them over,
arrest them and search the luggage. And since
the agents were in three (3) cars, they also
could have easily arranged to have agents in
one vehicle follow, intercept and apprehend the
Cuizons while the others went after Pua and
Lee. All or any of these possible moves are
mere ordinary, common-sense steps, not
requiring a great deal of intelligence. The NBI
men who testified claimed to have conducted
or participated in previous drug busts or similar
operations and therefore must have been
familiar with contingency planning, or at least
should have known what to do in this situation
where their alleged original plan fell through. At
any rate, what the lawmen opted to do, i.e.,
allow Pua and Lee to freely leave the airport,
allegedly bringing the drug cache to the hotel,
and Cuizon to leave unimpededly the airport
and reach his residence with one of the
luggage, increased significantly the risk of the
suspects (and/or the drugs) slipping through
the lawmen's fingers, and puts into question
the regularity of performance of their official
functions. The agents' alleged actions in this
case compare poorly with the forthright and
decisive steps taken by lawmen in the cases
earlier cited where this Court held the arrests
and seizures to be valid.
Had the arrests and searches been made in
transitu, i.e., had the agents intercepted and
collared the suspects on the way to Makati and
Caloocan, or better yet, at the very moment of
the hand-over, then there would not have been
any question at all as to the legality of their
arrest and search, as they would presumably
have been caught red-handed with the
evidence, and consequently for that reason
and by the very nature and manner of
commission of the offense charged, there
would have been no doubt also as to the
existence of conspiracy among the appellant to
transport the drugs. However, because of the
way the operation actually turned out, there is
no sufficient proof of conspiracy between Pua
and Lee on the one hand, and Cuizon on the
other, inasmuch as there is no clear and
convincing evidence that the four (4) bags
handed by Cuizon to Pua and Lee at the airport
were the very same ones found in the
possession of the latter in Room 340 of the
Peninsula Hotel. Not one of the NBI agents
when testifying could definitely and positively
state that the bags seized from Room 340 were
the very same ones passed by Cuizon at the
airport; at best, they could only say that they
"looked like" the ones they saw at the airport.
And even assuming them to be the same bags,
there remains doubt and uncertainty as to the
actual ownership of the said bags as at the
alleged turnover vis-a-vis the time they were
seized by the agents. For these reasons, we
cannot sustain the finding of conspiracy as
between Cuizon on the one hand and Pua and
Lee on the other. Well-settled is the rule that
conspiracy must be proved independently and
beyond reasonable doubt.[34]
Additionally, in light of the foregoing discussion,
we find it extremely difficult to subscribe to the
trial court's finding as to the existence and
sufficiency of probable cause in this case, one
major component of which would have been
the alleged information or "tip" purportedly
received by the agents as to the expected
arrival of the spouses Cuizon that fateful day
with a large cache of 'shabu.' The question that
defies resolution in our minds is why, if indeed
the information or "tip" was genuine and from a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
highly reliable source as claimed by the
government agents, did they not act on it?
Throw in the alleged month-long surveillance
supposedly conducted by some of the NBI
people on the Cuizon couple, and the mystery
only deepens. Even with the so-called tip and
the results of surveillance, the government
officers were still seemingly hesitant, reluctant,
uncertain, or perhaps afraid, to arrest and
search the accused appellants, so much so
that the NBI agents who went after Pua and
Lee at the Peninsula Hotel, instead of outrightly
cuffing and searching them, as they were
supposed to, opted instead to play it safe and
meekly beseeched the two to sign a written
consent for the agents to search their personal
effects! Indeed, this is one for the books. If this
is how confident the agents were about their
"hot tips," reliable informers and undercover
surveillance, then we cannot be blamed for
failing to appreciate the existence/sufficiency of
probable cause to justify a warrantless arrest
and search in this case. There is a whole lot
more that can be said on this score, but we
shall leave it at that for now. We shall now
dispose of the appeals of the accused-
appellants individually.
Re:Appellant Antolin Cuizon
The search of the house of appellant Cuizon,
having been conducted without any warrant,
and not on the occasion or as an incident of a
valid warrantless arrest, was indubitably illegal,
and the shabu seized thereat could not be
admissible in evidence. That is why even the
trial judge did not make an effort to hold him
liable under such seizure. He lamely argued:
"(A)t any rate, accused Cuizon is not held
criminally liable in this case in connection with
the bag containing 'shabu' confiscated from his
residence. His responsibility is based on the
bags containing 'shabu' which he handed to
Pua and Lee at the NAIA. Consequently, even
if the bag and its contents of 'shabu' taken from
his house were not admitted in evidence, the
remaining proofs of the prosecution would still
be sufficient to establish the charge against
him." However, contrary to the trial judge's
conclusion, we hold that insofar as Cuizon is
concerned, all the evidence seized are
considered fruit of the poisonous tree and are
inadmissible as against him, and thus, he
should be acquitted, since, as shown
hereinabove, (i) the warrantless search
conducted on Pua and Lee was clearly illegal
per se, not being incident to a valid warrantless
arrest either; (ii) and even if the search on Pua
and Lee were not illegal, conspiracy as
between Cuizon on the one hand and
appellants Pua and Lee on the other had not
been established by sufficient proof beyond
reasonable doubt; and (iii) appellant Cuizon
had timely raised before this Court the issue of
the illegality of his own arrest and the search
and seizure conducted at his residence, and
questioned the admission of the seized shabu
in evidence.
Re: Appellant Steve Pua @ "Tommy Sy"
What has been said for Cuizon cannot, alas, be
said for appellant Pua. While the search and
arrest carried out on him and Lee may have
been illegal for not being incident to a lawful
warrantless arrest, the unfortunate fact is that
appellant Pua failed to challenge the validity of
his arrest and search as well as the admission
of the evidence obtained thereby; he did not
raise the issue or assign the same as an error
before this Court. Accordingly, any possible
challenge thereto based on constitutional
grounds is deemed waived. This Court has
upheld and recognized waivers of constitutional
rights, including, particularly, the right against
unreasonable searches and seizures, in cases
such as People vs. Malasugui[35] and De
Garcia vs. Locsin.[36]
Additionally, the prosecution had argued and
the trial court agreed that by virtue of the
handwritten consent (Exhibit 'I') secured by the
arresting officers from appellants Pua and Lee,
the latter freely gave their consent to the
search of their baggage, and thus, the drugs
discovered as a result of the consented search
is admissible in evidence. The said written
permission is in English, and states plainly that
they (Pua and Lee) freely consent to the
search of their luggage to be conducted by NBI
agents to determine if Pua and Lee are
carrying shabu. It appears that appellant Pua
understands both English and Tagalog; he is
born of a Filipino mother, had resided in Vito
Cruz, Manila, and gave his occupation as that
of salesman. He admitted that he was asked to
sign the written consent, and that he did in fact
sign it (TSN, May 28, 1992, pp. 33-34). His
barefaced claim made during his direct and
cross-examinations to the effect that he did not
really read the consent but signed it right away,
and that by signing it he only meant to give
permission for the NBI agents to enter the
room (and not to search) is hardly worthy of
belief, considering that prior to the search, he
seemed to have been extra careful about who
to let into the hotel room.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Thus, the full weight of the prosecution's
testimonial evidence plus the large amount of
prohibited drugs found, must be given full
force vis-a-vis Pua's claim of innocent
presence in the hotel room, which is weak and
not worthy of credence.
Re:Appellant Paul Lee @ "Paul Leung"
Appellant Lee's situation is different from that
of Pua. We agree with the Solicitor General
when he noted that the trial judge did not exert
sufficient effort to make available compulsory
process and to see to it that accused appellant
Lee was given his day in court. It is clear that
appellant Lee was effectively denied his right to
counsel, for although he was provided with
one, he could not understand and
communicate with him concerning his defense
such that, among other things, no
memorandum was filed on his behalf; further,
he was denied his right to
have compulsory process to guarantee the
availability of witnesses and the production of
evidence on his behalf, including the services
of a qualified and competent interpreter to
enable him to present his testimony.[37] In sum,
he was denied due process. For this reason,
we hold that the case as against Lee must be
remanded to the court of origin for a re-trial.
Epilogue
It is evident and clear to us that the NBI agents
gravely mishandled the drug bust operation
and in the process violated the constitutional
guarantees against unlawful arrests and illegal
searches and seizures. Because of the large
haul of illegal drugs that the government
officers claimed to have recovered, this Court
agonized over the case before us and
struggled to apply the law with an even hand.
In the final analysis, we in the administration of
justice would have no right to expect ordinary
people to be law-abiding if we do not insist on
the full protection of their rights. Some lawmen,
prosecutors and judges may still tend to gloss
over an illegal search and seizure as long as
the law enforcers show the alleged evidence of
the crime regardless of the methods by which
they were obtained. This kind of attitude
condones law-breaking in the name of law
enforcement. Ironically, it only fosters the more
rapid breakdown of our system of justice, and
the eventual denigration of society. While this
Court appreciates and encourages the efforts
of law enforcers to uphold the law and to
preserve the peace and security of society, we
nevertheless admonish them to act with
deliberate care and within the parameters set
by the Constitution and the law. Truly, the end
never justifies the means.
WHEREFORE, in view of the foregoing
considerations, accused-appellant Antolin
Cuizon y Ortega is hereby ACQUITTED on
constitutional grounds. His immediate release
is ordered unless he is detained for other valid
causes. Accused-appellant Steve Pua y Clofas
is hereby found GUILTY of the crime of Illegal
Transport of Regulated Drugs, penalized under
Section 15, R.A. No. 6425, as amended, and is
hereby sentenced to suffer the penalty of
reclusion perpetua; the Decision appealed
from, as herein modified, is hereby affirmed as
to appellant Pua. Finally, the case as to
appellant Lee is hereby
ordered REMANDED to the trial court in order
that said accused may be given his day in
court. The Decision appealed from is
also AFFIRMED with respect to the disposition
of the prohibited drugs involved in the case.
SO ORDERED.
Valmonte v. De Villa, G.R. No. 83988
September 29, 1989
258 Phil. 838
PADILLA, J.:
This is a petition for prohibition with preliminary
injunction and/or temporary restraining order,
seeking the declaration of checkpoints in
Valenzuela, Metro Manila or elsewhere, as
unconstitutional and the dismantling and
banning of the same or, in the alternative, to
direct the respondents to formulate guidelines
in the implementation of checkpoints for the
protection of the people.
Petitioner Ricardo C. Valmonte sues in his
capacity as citizen of the Republic, taxpayer,
member of the Integrated Bar of the Philippines
(IBP), and resident of Valenzuela, Metro
Manila:  while petitioner Union of Lawyers and
Advocates for People's Rights (ULAP) sues in
its capacity as an association whose members
are all members of the IBP.
The factual background of the case is
as follows:
On 20 January 1987, the National Capital
Region District Command (NCRDC) was
activated pursuant to Letter of Instruction
02787 of the Philippine General Headquarters,
AFP, with the mission of conducting security
operations within its area of responsibility and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
peripheral areas, for the purpose of
establishing an effective territorial defense,
maintaining peace and order, and providing an
atmosphere conducive to the social, economic
and political development of the National
Capital Region.[1] As part of its duty to maintain
peace and order, the NCRDC installed
checkpoints in various parts of Valenzuela,
Metro Manila.
Petitioners aver that, because of the installation
of said checkpoints, the residents of
Valenzuela are worried of being harassed and
of their safety being placed at the arbitrary,
capricious and whimsical disposition of the
military manning the checkpoints, considering
that their cars and vehicles are being subjected
to regular searches and check-ups, especially
at night or at dawn, without the benefit of a
search warrant and/or court order.  Their
alleged fear for their safety increased when, at
dawn of 9 July 1988.  Benjamin Parpon, a
supply officer of the Municipality of
Valenzuela, Bulacan, was gunned down
allegedly in cold blood by the members of the
NCRDC manning the checkpoint along
McArthur Highway at Malinta, Valenzuela, for
ignoring and/or refusing to submit himself to
the checkpoint and for continuing to speed
off inspite of warning shots fired in the
air.  Petitioner Valmonte also claims that, on
several occasions, he had gone thru these
checkpoints where he was stopped and his car
subjected to search/check-up without a court
order or search warrant.
Petitioners further contend that the said
checkpoints give the respondents a blanket
authority to make searches and/or seizures
without search warrant or court order in
violation of the Constitution;[2] and instances
have occurred where a citizen, while not killed,
had been harassed.
Petitioners' concern for their safety and
apprehension at being harassed by the military
manning the checkpoints are not sufficient
grounds to declare the checkpoints
as per se illegal.  No proof has been presented
before the Court to show that, in the course of
their routine checks, the military indeed
committed specific violations
of petitioners' right against unlawful search and
seizure or other rights.
In a case filed by the same petitioner
organization.  Union of Lawyers and
Advocates for People's Right (ULAP) vs.
Integrated National Police,[3] it was held that
individual petitioners who do not allege that any
of their rights were violated are not qualified to
bring the action, as real parties in interest.
The constitutional right against unreasonable
searches and seizures is a personal
right invocable only by those whose rights have
been infringed,[4] or threatened to
be infringed.  What constitutes a reasonable or
unreasonable search and
seizure in any particular case is purely a
judicial question, determinable from a
consideration of the circumstances involved.[5]
Petitioner Valmonte's general allegation to the
effect that he had been stopped and searched
without a search warrant by the military
manning the checkpoints, without more,
i.e., without stating the details of the incidents
which amount to a violation of his right against
unlawful search and seizure, is not sufficient to
enable the Court to determine whether
there was a violation of Valmonte's right
against unlawful search and seizure.  Not all
searches and seizures are prohibited.  Those
which are reasonable are not forbidden.  A
reasonable search is not to be determined by
any fixed formula but is to be resolved
according to the facts of each case.[6]
Where, for example, the officer merely draws
aside the curtain of a vacant vehicle which is
parked on the public fair grounds,[7] or simply
looks into a vehicle,[8] or flashes a light therein,
[9]
 these do not constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may
be considered as a security measure to enable
the NCRDC to pursue its mission or
establishing effective territorial defense and
maintaining peace and order for the benefit of
the public.  Checkpoints may also be regarded
as measures to thwart plots to destabilize the
government, in the interest of public
security.  In this connection, the Court
may take judicial notice of the shirt to urban
centers and their suburbs of the insurgency
movement, so clearly reflected in the increased
killings in cities of police and military men by
NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the
alarming rise in lawlessness and violence in
such urban centers, not all of which are
reported in media, most likely brought about by
deteriorating economic conditions - which all
sum up to what one can rightly consider, at the
very least, as abnormal times.  Between the
inherent right of the state to protect its
existence and promote public welfare and an
individual's right against a warrantless search
which is however reasonably conducted, the
former should prevail.
True, the manning of checkpoints by the
military is susceptible of abuse by the men in
uniform, in the same manner that all
 HUMAN RIGHTS PRELIMFULLTEXT CASES
governmental power is susceptible of
abuse.  But, at the cost of occasional
inconvenience, discomfort and even irritation to
the citizen, the checkpoints during these
abnormal times, when conducted within
reasonable limits, are part of the price we
pay for an orderly society and a peaceful
community.
Finally, on 17 July 1988, military and police
checkpoints in Metro Manila were temporarily
lifted and a review and refinement of the rules
in the conduct of the police and military
manning the checkpoints was ordered by the
National Capital Regional Command Chief and
the Metropolitan Police Director.[10]
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera,
Gutierrez, Jr., Paras,
Feliciano, Gancayco, Bidin, Cortes, Grino-
Aquino, Mediladea, and Regalado, JJ., concur.
Cruz, J., see dissent.
Sarmiento, J., I dissent. Please see dissenting
opinion.
[1]
 Comment of Respondents, Rollo, p. 32
[2]
 Article III, Section 2, 1987 Constitution
provides:
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.
PEOPLE VS. BOLANOS [211 SCRA 262;
G.R. NO. 101808; 3 JUL 1992]
[G.R. No. 101808. July 3, 1992.]
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. RAMON BOLANOS, Accused-
Appellant.
The Solicitor General for Plaintiff-Appellee.
Public Attorney’s Office for Accused-
Appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT OF PERSON UNDER CUSTODIAL
INVESTIGATION; RULE. — Being already
under custodial investigation while on board
the police patrol jeep on the way to the Police
Station where formal investigation may have
been conducted, appellant should have been
informed of his Constitutional rights under
Article III, Section 12 of the 1987 Constitution
which explicitly provides:" (1) Any person under
investigation for the commission of an offense
shall have the right to remain silent and to have
competent and independent preferably of his
own choice. If the person cannot afford the
service of counsel, he must be provided with
one. These rights cannot be waived except in
writing and in the presence of counsel." (2) No
torture, force, violence, threat, intimidation, or
any other means which vitiate the free will shall
be used against him. Secret detention places,
solitary, incommunicado, or other similar forms
of detention are prohibited." (3) Any confession
or admission obtained in violation of this or the
preceding section shall be inadmissible in
evidence against him." (4) The law shall
provide for penal and civil sanctions for
violation of this section as well as
compensation and rehabilitation of victims of
torture or similar practices and their families."
DECISION
PARAS, J.:
This is a review of the decision of the Regional
Trial Court of Malolos, Bulacan, Branch 14,
under Criminal Case No. 1831-M-90, for
"Murder", wherein the accused-appellant,
Ramon Bolanos was convicted, as
follows:jgc:chanrobles.com.ph
"WHEREFORE, judgment is rendered finding
the accused guilty beyond reasonable doubt of
the Crime of Murder and the Court hereby
imposed upon the accused Ramon Bolanos the
penalty of Reclusion Perpetua (life
imprisonment) and to pay the heirs of the victim
P50,000.00. With Costs.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
"SO ORDERED." (Judgment, p. 6)
The antecedent facts and circumstances,
follow:chanrob1es virtual 1aw library
The evidence for the prosecution consisted of
the testimonies of Patrolmen Marcelo J.
Fidelino and Francisco Dayao of the Integrated
National Police (INP), Balagtas, Bulacan,
Calixto Guinsaya, and Dr. Benito Caballero,
Medico-Legal Officer of Bocaue, Bulacan and
documentary exhibits. The testimonial
evidence were after the fat narration of events
based on the report regarding the death of the
victim, Oscar Pagdalian which was
communicated to the Police Station where the
two (2) policemen who responded to the
incident are assigned and subsequently
became witnesses for the prosecution.
(Appellant’s Brief, p. 2)
Patrolmen Rolando Alcantara and Francisco
Dayao testified that they proceeded to the
scene of the crime of Marble Supply, Balagtas,
Bulacan and upon arrival they saw the
deceased Oscar Pagdalian lying on an
improvised bed full of blood with stab wounds.
They then inquired about the circumstances of
the incident and were informed that the
deceased was with two (2) companions, on the
previous night, one of whom was the accused
who had a drinking spree with the deceased
and another companion (Claudio Magtibay) till
the wee hours of the following morning, June
23, 1990. (Ibid., p. 3)chanrobles.com.ph :
virtual law library
The corroborating testimony of Patrolmen
Francisco Dayao, further indicated that when
they apprehended the accused-appellant, they
found the firearm of the deceased on the chair
where the accused was allegedly seated; that
they boarded Ramon Bolanos and Claudio
Magtibay on the police vehicle and brought
them to the police station. In the vehicle where
the suspect was riding, "Ramon Bolanos
accordingly admitted that he killed the
deceased Oscar Pagdalian because he was
abusive." (Ibid., p. 4)
During the trial, it was clearly established that
the alleged oral admission of the appellant was
given without the assistance of counsel as it
was made while on board the police vehicle on
their way to the police station. The specific
portion of the decision of the court a quo reads
as follows:jgc:chanrobles.com.ph
". . . the police boarded the two, the accused
Ramon Bolanos and Claudio Magtibay in their
jeep and proceeded to the police station of
Balagtas, Bulacan to be investigated, on the
way the accused told the police, after he was
asked by the police if he killed the victim, that
he killed the victim because the victim was
abusive; this statement of the accused was
considered admissible in evidence against him
by the Court because it was given freely and
before the investigation.
"The foregoing circumstances clearly lead to a
fair and reasonable conclusion that the
accused Ramon Bolanos is guilty of having
killed the victim Oscar Pagdalian." (Judgment,
p. 6)
A Manifestation (in lieu of Appellee’s Brief),
was filed by the Solicitor General’s Office,
dated April 2, 1992, with the position that the
lower court erred in admitting in evidence the
extra-judicial confession of appellant while on
board the police patrol jeep. Said office even
postulated that:" (A)ssuming that it was given,
it was done in violation of appellant’s
Constitutional right to be informed, to remain
silent and to have a counsel of his choice,
while already under police custody."
(Manifestation, p. 4)
Being already under custodial investigation
while on board the police patrol jeep on the
way to the Police Station where formal
investigation may have been conducted,
appellant should have been informed of his
Constitutional rights under Article III, Section
12 of the 1987 Constitution which explicitly
provides:jgc:chanrobles.com.ph
"(1) Any person under investigation for the
commission of an offense shall have the right
to remain silent and to have competent and
independent preferably of his own choice. If the
person cannot afford the service of counsel, he
must be provided with one. These rights cannot
be waived except in writing and in the presence
of counsel.chanrobles virtual lawlibrary
"(2) No torture, force, violence, threat,
intimidation, or any other means which vitiate
the free will shall be used against him. Secret
detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
"(3) Any confession or admission obtained in
violation of this or the preceding section shall
be inadmissible in evidence against him.
"(4) The law shall provide for penal and civil
sanctions for violation of this section as well as
compensation and rehabilitation of victims of
torture or similar practices and their families."
(Emphasis supplied)
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Considering the clear requirements of the
Constitution with respect to the manner by
which confession can be admissible in
evidence, and the glaring fact that the alleged
confession obtained while on board the police
vehicle was the only reason for the conviction,
besides appellant’s conviction was not proved
beyond reasonable doubt, this Court has no
recourse but to reverse the subject judgment
under review.
WHEREFORE, finding that the Constitutional
rights of the accused-appellant have been
violated, the appellant is ACQUITTED, with
costs de oficio.
SO ORDERED.
\ indicates in any manner and at any stage of the
G.R. No. 86941. March 3, 1993.
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. TEODORO BASAY @ "DORO"
and JAIME RAMIREZ @ "NEBOY", accused.
JAIME RAMIREZ @ "NEBOY", accused-
appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS;
RIGHT TO REMAIN SILENT AND TO
COUNSEL AND TO BE INFORMED OF SUCH
RIGHTS; WAIVER THEREOF; CUSTODIAL
INVESTIGATION; DEFINED; PROCEDURAL
SAFEGUARDS TO BE EMPLOYED. — ". . . " .
. . The landmark opinion of Miranda vs.
Arizona, decided in 1966, as noted above, the
source of this constitutional provision,
emphasized that statements made during the
period of custodial interrogation to be
admissible require a clear intelligent waiver of
constitutional rights, the suspect being warned
prior to questioning that he has a right to
remain silent, that any utterance may be used
against him, and that he has the right to the
presence of a counsel, either retained or
appointed. In the language of Chief Justice
Warren: 'Our holding will be spelled out with
some specificity in the pages which follow, but
briefly stated, it is this: the prosecution may not
use statements, whether exculpatory or
inculpatory, stemming from custodial
interrogation of the defendant unless it
demonstrates the use of procedural safeguards
effective to secure the privilege against self-
incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement
officers after a person has been taken into
custody or otherwise deprived of his freedom of
action in any significant way. As for the
procedural safeguards to be employed, unless
other fully effective means are devised to
inform accused persons of their right of silence
and to assure a continuous opportunity to
exercise it, the following measures are
required. Prior to any questioning, the person
must be warned that he has a right to remain
silent, that any statement he does not make
(sic) may be used as evidence against him,
and that he has a right to the presence of an
attorney, either retained or appointed. The
defendant may waive effectuation of those
rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he
process that he wishes to consult with an
attorney before speaking, there can be no
questioning. Likewise, if the individual is alone
and indicates in any manner that he does not
wish to be interrogated, the police may not
question him. The mere fact that he may have
answered some questions or volunteered some
statements on his own does not deprive him of
the right to refrain from answering any further
inquiries until he has consulted with an attorney
and thereafter consents to be questioned.'"
2. ID.; ID.; ID.; PROCEDURE TO BE
FOLLOWED BY PEACE OFFICERS WHEN
MAKING ARREST AND WHEN
CONDUCTING CUSTODIAL
INVESTIGATION. — In Morales vs. Enrile, in
the light of the said Section 20, prescribed the
procedure to be followed by peace officers
when making an arrest and when conducting a
custodial investigation. Thus: "7. At the time a
person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for
the arrest and he must be shown the warrant of
arrest, if any. He shall be informed of his
constitutional rights to remain silent and to
counsel, and that any statement he might make
could be used against him. The person
arrested shall have the right to communicate
with his lawyer, a relative, or anyone he
chooses by the most expedient means — by
telephone if possible — or by letter or
messenger. It shall be the responsibility of the
arresting officer to see to it that this is
accomplished. No custodial investigation shall
be conducted unless it be in the presence of
counsel engaged by the reason arrested, by
any person on his behalf, or appointed by the
court upon petition either of the detainee
himself or by anyone on his behalf. The right to
counsel may be waived but the waiver shall not
be valid unless made with the assistance of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
counsel. Any statement obtained in violation of
the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part,
shall be inadmissible in evidence."
3. ID.; ID.; ID.; PHRASE "RIGHT TO BE
INFORMED OF SUCH RIGHTS" EXPLAINED;
CASE AT BAR. — In People vs. Nicandro, this
Court declared that one's right to be informed
of the right to remain silent and to counsel
contemplates "the transmission of meaningful
information rather than just the ceremonial and
perfunctory recitation of an abstract
constitutional principle." Thus, is not enough for
the interrogator to merely repeat to the person
under investigation the provisions of section
20, Article IV of the 1973 Constitution, now
Section 12, Article III of the 1987 Constitution;
the former must also explain the effects of such
provision in practical terms — e.g., what the
person under interrogation may or may not do -
and in a language the subject fairly
understands. The right "to be informed" carries
with it a correlative obligation on the part of the
police investigator to explain, and contemplates
effective communication which results in the
subject's understanding of what is conveyed.
Since it is comprehension that is sought to be
attained, the degree of explanation required will
necessarily vary and depend on the education,
intelligence and other relevant personal
circumstances of the person undergoing
investigation. In further ensuring the right to
counsel, it is not enough that the subject is
informed of such right; he should also be asked
if he wants to avail of the same and should be
told that he could ask for counsel if he so
desired or that one could be provided him at
his request. If he decides not to retain counsel
of his choice or avail of one to be provided for
him and, therefore, chooses to waive his right
to counsel, such waiver, to be valid and
effective, must still be made with the
assistance of counsel. That counsel must be a
lawyer. . . . the kind of "advice" proffered by the
unidentified interrogator belongs to that
stereotyped class — a long question by the
investigator informing the appellant of his right
followed by a monosyllabic answer — which
this Court has condemned for being
unsatisfactory. The investigator gave his advice
perfunctorily or in a pro-forma manner,
obviously to pay mere lip service to the
prescribed norms. As this Court observed in
People vs. Newman, this stereotyped "advice":
" . . . has assumed the nature of a 'legal form'
or model. Its tired, punctilious, fixed and
artificially stately style does not create an
impression of voluntariness or even
understanding on the part of the accused. The
showing of a spontaneous, free and
unconstrained giving up of a right is missing."
4. ID.; ID.; ID.; PRIMARY OF RIGHT TO
COUNSEL STRESSED IN 1987
CONSTITUTION. — "SEC 12(1). Any person
under investigation for the commission of an
offense shall have the right to be informed of
his right to remain silent and to have competent
and independent counsel preferably of his own
choice. If the person cannot afford the services
of counsel, he must be provided with one.
These rights cannot be waived except in writing
and in the presence of counsel. (3) Any
confession or admission obtained in violation of
this or Section 17 hereof shall be inadmissible
in evidence against him." The adjectives
competent and independent, which qualify the
kind of counsel an accused is entitled to during
investigation, were not found in the previous
Constitution. Their incorporation in the 1987
Constitution was thus meant to stress the
primacy of this right to counsel.
5. REMEDIAL LAW; EVIDENCE;
COMPETENCY OF WITNESSES; IN CASE AT
BAR, CONDITION OF WITNESS AT TIME
SHE SUPPOSEDLY GAVE STATEMENT
RENDERED EFFECTIVE COMMUNICATION
IMPOSSIBLE. — We harbor very serious
doubts about the alleged statement given by
Bombie Toting to Sgt. Tabanao and Jaime
Saguban identifying the appellant and Teodoro
Basay as the perpetrators of the heinous crime.
In the first place, the trial court itself ruled that
Bombie was not a competent witness. We
agree with such a conclusion, not necessarily
because she was only six (6) years old, but
because her condition at the time she
supposedly gave her statement made it
impossible for her to have communicated
effectively. She suffered the following injuries:
"Infected hack wound from the right anterior
lumbar area transecting mid abdomen, inguinal
area left to the medial thigh left through and
through, with necrotic transected muscle." She
was taken from the crime scene only on 6
March 1986, or two (2) days after the
commission of the crime, and died in the
hospital on 7 March 1986. The doctor who first
attended to her when she arrived at the
Provincial Hospital, a certain Dr. Sy, was not
presented as a witness. On the other hand, the
doctor who attended to her before she died, Dr.
Edgar Cantalao, testified that when he last saw
Bombie alive, she could not talk.
6. ID.; ID.; CIRCUMSTANTIAL EVIDENCE;
WHEN SUFFICIENT FOR CONVICTION;
CASE AT BAR. — While it may be true that the
appellant ran away when he first saw the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
armed law officers, he did so merely out of fear
of them. This act should not be considered as
the flight which is indicative of guilt. The
appellant had not left his house or barangay
since 4 March 1986, the day the crime was
committed. If he were indeed one of the
perpetrators and had the intention to flee in
order to avoid arrest, he should have vanished
sooner and should not have remained in his
house. Besides, if indeed his running away
could be construed as flight, it could only be
considered as circumstantial evidence. Such
evidence would still be insufficient for a
conviction. Under Section 4, Rule 133 of the
Rules of Court, in order that circumstantial
evidence may sustain a conviction, there must,
inter alia, be more than one (1) circumstance.
No other circumstance was established in this
case.
DECISION
DAVIDE, JR., J p:
Teodoro Basay and Jaime Ramirez were
charged with Multiple Murder with Arson in a
criminal complaint 1 filed on 24 March 1986
with the Municipal Circuit Trial Court (MCTC) of
Pamplona-Amlan-San Jose in the Province of
Negros Oriental for having allegedly killed the
spouses Zosimo and Beatrice Toting and their
six-year old daughter, Bombie, and for having
burned the said spouses' house to conceal the
crime; as a consequence of such fire, the
spouses' other daughter, Manolita, was burned
to death.
On 31 March 1986, the MCTC issued a warrant
for the arrest of the accused; no bail was
recommended. 2 It appears, however, that the
accused had earlier been apprehended on 6
March 1986 by elements of the Philippine
Constabulary (PC) and Civilian Home Defense
Forces (CHDF) and were detained at the
Pamplona municipal jail.
On 15 April 1986, the accused filed a Waiver of
Preliminary Investigation 3 which prompted the
MCTC, the following day, to order the clerk of
court to forward the records of the case to the
Office of the Provincial Fiscal. 4
Meanwhile, on 14 August 1986, the Integrated
National Police (INP) Station Commander of
Pamplona amended the complaint by including
therein the name of another victim, Manolo
Toting, who suffered second and third degree
burns because of the burning of the house. 5
On 11 December 1986, the Second Assistant
Provincial Fiscal of Negros Oriental filed with
the Regional Trial Court (RTC) of Negros
Oriental an Information for Multiple Murder and
Frustrated Murder with Arson 6 against the
accused. The accusatory portion of the
Information reads:
xxx xxx xxx
"That on or about March 4, 1986, at sitio
Tigbao, Barangay Banawe, Pamplona, Negros
Oriental, Philippines, and within the jurisdiction
of this Honorable Court, the above-named
accused, conspiring and confederating
together and acting in common accord, with
intent to kill, evident premeditation and
treachery, did then and there willfully,
unlawfully and feloniously assault, attack, stab
and hack with the use of a bolo and sickle, with
which the accused were then respectively
armed and provided, one ZOSIMO TOTING,
SR., thereby inflicting upon the victim hack
wound, neck posterior area 5" long, 3" depth,
hack wounds, left upper back 3" long, 4" depth,
stab wound, thru and thru, lower abdomen, 4"
width , exit lower back 1" width, 90% 2nd and
3rd degree burns of the body, and which
wounds caused the death of said Zosimo
Toting, Sr., immediately thereafter; one
BEATRICE TOTING, thereby inflicting upon the
victim hacking (sic) wound, neck posterior
area, 5" long, 6" depth, incised wound,
epigastric area 11" long, 4" depth, exposing
vital organs, lower abdomen, 11" long, 4" depth
exposing intestines, 90% 2nd and 3rd degree
burns of the body, and which wounds caused
the death of said Beatrice Toting immediately
thereafter; one BOMBIE TOTING, thereby
inflicting upon the victim infected hack wound
from the right anterior lumbar area transecting
mid-abdomen, inguial area left to the medial
thigh left, through and through, with necrotic
transected muscle, and which wounds caused
the death of said Bombie Toting shortly
thereafter; and in order to cover-up the heinous
crime committed, the above-named accused,
conspiring and confederating together and
acting in common accord, did then and there
willfully, unlawfully and feloniously set to fire
the house of the aforesaid victim (sic) spouses
Zosimo Toting, Sr. and Beatrice Toting, thereby
razing it to the ground, and as a consequence
thereto MANOLITA TOTING suffered Third
degree burns, all burn (sic) body, head,
extremities or 100% burns, and which wounds
caused the death of said Manolita Toting
immediately thereafter and also causing
injuries to MANOLO TOTING, to wit: 20% 2nd
and 3rd degree burns on the upper extremity
bilateral, posterior shoulder, left and back, and
which wounds would have caused the death of
victim Manolo Toting, thus performing all the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
overt acts of execution which would have
produced the crime of Murder as a
consequence, but nevertheless did not produce
it by reason of causes independent of the will
of the perpetrator, that is, the timely medical
assistance extended to said Manolo Toting
which prevented his death.
Contrary to Article 248 in relation to Articles 6,
48 and 50 of the Revised Penal Code."
The case was docketed as Criminal Case No.
7411 and was raffled off to Branch 40 of the
said court.
After both accused entered a not guilty plea
during their arraignment on 23 February 1987,
7 trial on the merits ensued. The prosecution
presented Dr. Edgardo Barredo, MCTC Judge
Teopisto Calumpang, Jaime Saguban, Sgt.
Reynaldo Tabanao, Dr. Edgar Gantalao and
Dr. Lucio Togonon as its witnesses for the
evidence in chief, and Judge Calumpang and
Elpedio Catacutan in rebuttal; for its
surrebuttal, Pfc. Urbano Cavallida was
presented. On the other hand, the accused
testified for the defense together with
witnesses Joven Lopez and Maxima Basay.
Accused Ramirez took the witness stand again
in surrebuttal.
On 15 December 1988, the trial court
promulgated its Decision, dated 14 December
1988, acquitting accused Teodoro Basay but
convicting accused Jaime Ramirez. 8 Its
dispositive portion reads:
WHEREFORE, the prosecution having failed to
prove the guilt of the accused beyond
reasonable doubt for the crime of Multiple
Murder, Frustrated Murder With Arson against
the accused Teodoro Basay, this Court hereby
finds said accused Teodoro Basay NOT
GUILTY and orders his immediate release from
detention.
The prosecution has proven the guilt of the
accused beyond reasonable doubt for the
crime of Multiple Murder, Frustrated Murder
With Arson against accused Jaime Ramirez
(sic), this Court finds him GUILTY to (sic) said
crime and hereby sentences him to suffer the
penalty of life imprisonment and to indemnify
the heirs of the victims in the sum of Thirty
Thousand (P30,000.00) Pesos as his civil
indemnity.
SO ORDERED." 9
The evidence for the prosecution upon which
the decision is based is summarized in detail in
the trial court's decision and is further
condensed in the Appellee's Brief 10 as
follows:
"On March 6, 1986, Zosimo Toting Jr. reported
to the Nabalabag Philippine Constabulary
Patrol at Pamplona, Negros Oriental, that his
parents had been killed and their house at
Tigbaw, [Pamplona] Negros Oriental, burned.
This prompted PC Sgt. Reynaldo Tabanao,
Sgt. Nestorio Rubia, Jaime Saguban and three
members of the Civilian Home Defense Force
to go to Tigbaw, [Pamplona] Negros Oriental,
to investigate the incident (TSN, January 20,
1988, p. 5).
Upon arriving at Tigbaw, they found a burned
house and several dead bodies. The trial court
identified the four (4) fatalities and their injuries
as follows:
(1) Zosimo Toting, Sr., with hack wound neck,
posterior area, . . . hack wound, left upper back
. . . stab wound, through and through, lower
abdomen, . . . 90% second and third degree
burns of the body;
(2) Beatrice Toting, hack wound, neck posterior
are . . . incised wound, epigastric area . . .
exposing vital organs, lower abdomen . . . exist
(sic) lower back, 90% second and third degree
burns of the body;
(3) Bombie Toting, inflicted hack wound from
the anterior lumbar area transecting mid-
abdomen, inguial area left to the medial thigh
left, through and through, with necrotic
transected muscle;
(4) Manolita Toting, third degree burns, all
burned body, head, extrimities (sic) or 100%
burns;
Manolo Toting did not die but suffered 20%
second and third degree burns on the upper
extremity bilateral, posterior shoulder, left and
back (Records, p. 213).
Zosimo Toting, Sr, Beatrice Toting, Manolita
Toting and Manolo Toting were found near the
vicinity of the burned house. About forty (40)
meters away, the investigating officers found
six year old Bombie Toting suffering from
serious hack wounds (TSN, January 20, 1988,
p. 18). The young girl said that she had been in
this condition for one and a half days already.
Bombie Toting related to Sgt. Tabanao that on
March 4, 1986 at 7:00 o'clock in the evening,
appellant and Teodoro Basay killed her parents
 HUMAN RIGHTS PRELIMFULLTEXT CASES
and burned their house (TSN, January 20,
1988, p. 18, Records, p. 9).
On the same day the investigating officers went
to the appellant's house. They saw appellant
fixing the roof of his house and when appellant
saw them, he went down and tried to ran (sic)
away (TSN, January, 20, 1988, p. 22).
Appellant was turned over to the Pamplona
Police Station (TSN, January 20, 1988, p. 25).
Bombie Toting was brought to the hospital but
due to the gravity of her injuries she died on
March 7, 1986 at 1:40 P.M. (Records, p. 12,
Exhibit I).
Appellant was brought into the chamber of
Judge Teopisto Calumpang, the municipal
circuit trial judge of Pamplona, Amlan, and San
Jose, on March 14, 1986. He was
accompanied by Mr. Elpedio Catacutan who
acted as appellant's counsel (TSN, June 6,
1988, p. 6). They brought with them an affidavit
previously typed by a police investigating
officer. The Judge then made the court
interpreter translate the allegations of the
sworn statement into the local dialect for
appellant (TSN, June 6, 1988). Thereafter, in
the presence of the Judge, appellant and Mr.
Catacutan signed the affidavit. (TSN, January
20, 1988, p. 14). Appellant and counsel also
signed the vernacular translation of Exhibit F
(Records, p . 12)."
Upon the other hand, the evidence for accused
Jaime Ramirez is substantially summarized in
the Appellant's Brief 11 in this wise:
"Evidence for the Defense:
xxx xxx xxx
Accused Jaime Ramirez testified that he was
cooking food for the pig when the armed
uniformed men arrested him on March 5, 1986
and was brought (sic) to the Nabalabag PC
Detachment where he was maltreated. Later,
he was brought to Municipal (sic) Jail where he
stayed for one month and 23 days.
Queried on the 'Joint Waiver', this witness said
he did not read it because he did not know how
to read. When it was read to him, he did not
understand it because it was read in English.
Elpedio Catacutan was not his lawyer and he
did not know him (TSN, March 5, pp. 3, 5-6, 9-
10).
On cross-examination, this witness said he
reached Grade II and knows how to write his
name. He was alone at the time he was
arrested. He was arrested ahead of Teodoro
Basay and those who arrested him where (sic)
not the same persons who arrested Teodoro
Basay.
He first saw Elpedio Catacutan in the
Pamplona Municipal Hall when Elpedio was
going upstairs. When he signed Exhibit "F",
Catacutan was in front of him. They did not
converse with each others (sic). He did not
engage Catacutan to assist him, nor solicit his
services. He does know (sic) any one who
solicited Catacutan's services for him. He did
not ask the Judge (Calumpang) that a lawyer
be designated to help him in connection with
the affidavit. The Pamplona Judge did not offer
to give him a lawyer to assist him in the
execution of the affidavit (TSN, October 4,
1988, p.4)." 12
Jaime Ramirez is a farmer and at the time he
testified on 8 March 1988, was nineteen (19)
years old and single. 13 The prosecution did
not rebut his claim that he had only finished
Grade II and that he does not know how to
read. He, however, understands the Cebuano
dialect. 14
The Exhibit "F" referred to above is the Sworn
Statement, 15 in English, of accused Jaime
Ramirez taken in the Pamplona police station
on 7 March 1986 and subscribed and sworn to
only on 14 March 1986 before Judge Teopisto
L. Calumpang of the MCTC of Pamplona-
Amlan-San Jose. The trial court described this
document as the Extra-Judicial Confession 16
of Ramirez.
The Joint Waiver (Exhibit "G") mentioned the
testimony of Jaime Ramirez is in the Cebuano
dialect and was signed by accused Basay and
Ramirez on 7 March 1986. Both accused state
therein that for their safety and security, they
voluntarily decided to be detained and that they
killed the spouses Zosimo Toting and Betty
Toting and thereafter burned the spouses'
house; this fire resulted in the death of one and
the hospitalization of two Toting children. 17
The trial court disregarded this Joint Waiver
insofar as it tended to incriminate the accused
"because when they signed said Joint Waiver,
they were not represented by counsel;" thus,
the same was prepared in violation of "Section
12, Article 3 of the Bill of Rights of the 1987
Constitution." 18 There being no other
evidence against Basay, the trial court
acquitted him. However, it admitted in evidence
the so-called extra-judicial confession of Jaime
Ramirez, considered as part of the res gestae
the alleged statement given by Bombie Toting
 HUMAN RIGHTS PRELIMFULLTEXT CASES
to PC Sgt. Reynaldo Tabanao and Jaime
Saguban identifying Ramirez and Basay as the
perpetrators of the crime and considered as
flight — which is indicative of guilt — Ramirez's
running away when he saw the law enforcers
on 6 March 1986. It further ruled that the latter
signed the extra-judicial confession voluntarily
and in the presence of Elpedio Catacutan, the
COMELEC registrar of Pamplona — "a barister
(sic) who appeared as counsel for accused
Jaime Ramirez;" hence it is admissible against
the latter. 19
On the other hand, the trial court did not admit
the statement of Bombie Toting as a dying
declaration but merely as part of the res gestae
because the prosecution failed to prove two (2)
of the requisites for the admissibility of a dying
declaration, viz., that the statement was given
under consciousness of an impending death
and that Bombie Toting is a competent witness.
20
Accused Jaime Ramirez neither filed a notice
of appeal nor orally manifested his intention to
appeal. However, on 31 January 1983, the trial
court handed down an order directing the clerk
of court to transmit to this Court the entire
records of the case because in view of the
penalty imposed — life imprisonment — "such
Decision is subject for automatic review by the
Supreme Court." 21 This of course is
erroneous as, pursuant to Section 10, Rule 122
of the Rules of Court, the automatic review of a
criminal case is applicable only where the
penalty of death has been imposed which,
nevertheless, is now banned under Section
19(1), Article III of the 1987 Constitution.
In the interest of justice, however, We accepted
the appeal in the Resolution of 8 May 1989. 22
In his Appellant's Brief, 23 Jaime Ramirez,
hereinafter referred to as the Appellant,
imputes upon the trial court the commission of
this lone error:
"THE TRIAL COURT ERRED IN FINDING THE
APPELLANT GUILTY AS CHARGED ON THE
BASIS OF EXHIBIT "F" (AFFIDAVIT) WHICH
WAS EXECUTED IN VIOLATION OF HIS
CONSTITUTIONAL RIGHTS AND ON THE
BASIS OF HEARSAY EVIDENCE AND ON
THE PRESUMPTION OF GUILT."
Appellant contends that his so-called extra-
judicial confession, Exhibit "F", was executed in
blatant disregard of his constitutional right to
counsel and to remain silent during custodial
investigation. It is therefore inadmissible in
evidence. 24 Without the said confession, the
only piece of evidence which seems to point to
his guilt is the alleged statement of Bombie
Toting. Appellant asserts, however, that the
said statement was "very doubtful and . . . no
reasonable mind would conclude that she was
candidly truthful;" hence, her statement,
besides being hearsay as it came from a
person who was not presented in court to
testify, should not have been taken at "face
value against any of the accused, much less
against the appellant." 25 Besides, the
appellant asserts that the same statement was
not used against his co-accused Basay who
was, unlike him, acquitted by the trial court. As
to his having run away upon seeing the armed
law enforcers, appellant claims that he did so
out of fear as the latter were armed. 26
On the other hand, it is maintained by the
People, in the Appellee's Brief 27 submitted by
the Office of the Solicitor General, that the
appellant executed the extra-judicial confession
voluntarily and without duress; in signing such
confession, he was accompanied by a certain
Mr. Catacutan, a non-lawyer, inside the
chambers of Judge Calumpang — "an
environment . . . other than vindictive and
oppressive which the courts desired to guard
against in Miranda vs. Arizona, 384 US 436."
28 As to Bombie's statement, it is claimed that
the same should be considered as a dying
declaration.
We find merit in the appeal.
1. Jaime Ramirez's sworn statement or extra-
judicial confession was prepared on 7 March
1986 at about 11:00 o'clock in the morning in
the Pamplona police station. Pertinent portions
thereof read as follows:
"PRELIMINARY — MR. JAIME RAMIREZ, you
are now under investigation in connection with
the death of the couple and the burning of their
house, ZOSIMO TOTING and BEATRICE
TOTING alias BETTY TOTING on March 4,
1986 at about 7:00 o'clock in the evening at
sitio Togbao, Barangay Banawe, Pamplona,
Negros Oriental. You are also informed that
under our new constitution you have the right
to remain silent and not to answer questions
which will incriminate you and to have a
counsel of your own choice to assist you in this
investigation, do (sic) you aware of this?
ANSWER — Yes.
Q — You are also informed that whatever
statement you may offer in this investigation it
(sic) might be used as evidence in your favor or
 HUMAN RIGHTS PRELIMFULLTEXT CASES
against you in the future, do (sic) you aware of
this this (sic)?
A — Yes.
Q — After you have informed (sic) of your
rights are you willing to proceed with this
investigation of yours even if you have no
counsel of your own choice that will assist you
in this investigation?
A — Yes. I don't need any counsel in this
investigation because I will just tell the truth.
1. Question — If so, please state your name,
age and other personal circumstances?
Answer — Jaime Ramirez y Tano, 19 years
old, single, Filipino, farmer and a resident of
sitio Palale, Barangay San Isidro, Pamplona,
Negros Oriental.
xxx xxx xxx
11. Q — What more can you say?
A — No more. I proved that my statement is
correct I signed this 7 March 1986 (sic), at
Pamplona, Negros Oriental.
(Sgd.) JAIME T. RAMIREZ
(TYP) JAIME T. RAMIREZ
Affiant
NOTE: ASSISTED BY:
(Sgd.) ELPEDIO B. CATACUTAN
(TYP) ELPEDIO B. CATACUTAN
Counsel of the accused
SUBSCRIBED AND SWORN to before me this
14th day of March 1986, at Pamplona, Negros
Oriental, Philippines.
(Sgd.) TEOPISTO L. CALUMPANG
(TYP) TEOPISTO L. GALUMPANG
Mun Trial Circuit Judge
CERTIFICATION
I HEREBY CERTIFY that I have personally
examined the affiant and that I am satisfied that
he voluntarily executed and understood his
affidavit.
(Sgd.) TEOPISTO L. CALUMPANG
(TYP) TEOPISTO L. CALUMPANG
Mun Trial Circuit Judge" 29
We do not hesitate to rule that this purported
extra-judicial confession belonging to appellant
Jaime Ramirez and obtained during custodial
interrogation was taken in blatant disregard of
his right to counsel, to remain silent and to be
informed of such rights, guaranteed by Section
20, Article IV of the 1973 Constitution — the
governing law at that time. Said section reads:
"SECTION 20. No person shall be compelled
to be a witness against himself. Any person
under investigation for the commission of an
offense shall have the right to remain silent and
to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any
other means which vitiates the free will shall be
used against him. Any confession obtained in
violation of this section shall be inadmissible in
evidence."
The source of this provision is Miranda vs.
Arizona, 30 in connection therewith, this Court
stated in People vs. Caguioa 31 that:
" . . . The landmark opinion of Miranda vs.
Arizona, decided in 1966, as noted above, the
source of this constitutional provision,
emphasized that statements made during the
period of custodial interrogation to be
admissible require a clear intelligent waiver of
constitutional rights, the suspect being warned
prior to questioning that he has a right to
remain silent, that any utterance may be used
against him, and that he has the right to the
presence of a counsel, either retained or
appointed. In the language of Chief Justice
Warren: 'Our holding will be spelled out with
some specificity in the pages which follow, but
briefly stated, it is this: the prosecution may not
use statements, whether exculpatory or
inculpatory, stemming from custodial
interrogation of the defendant unless it
demonstrates the use of procedural safeguards
effective to secure the privilege against self-
incrimination. By custodial interrogation, we
mean questioning initiated by law enforcement
officers after a person has been taken into
custody or otherwise deprived of his freedom of
action in any significant way. As for the
procedural safeguards to be employed, unless
other fully effective means are devised to
inform accused persons of their right of silence
and to assure a continuous opportunity to
exercise it, the following measures are
required. Prior to any questioning, the person
 HUMAN RIGHTS PRELIMFULLTEXT CASES
must be warned that he has a right to remain
silent, that any statement he does not make
(sic) may be used as evidence against him,
and that he has a right to the presence of an
attorney, either retained or appointed. The
defendant may waive effectuation of those
rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he
indicates in any manner and at any stage of the
process that he wishes to consult with an
attorney before speaking, there can be no
questioning. Likewise, if the individual is alone
and indicates in any manner that he does not
wish to be interrogated, the police may not
question him. The mere fact that he may have
answered some questions or volunteered some
statements on his own does not deprive him of
the right to refrain from answering any further
inquiries until he has consulted with an attorney
and thereafter consents to be questioned.'"
(citations omitted).
Then, in Morales vs. Enrile, 32 in the light of
the said Section 20, prescribed the procedure
to be followed by peace officers when making
an arrest and when conducting a custodial
investigation. Thus:
"7. At the time a person is arrested, it shall be
the duty of the arresting officer to inform him of
the reason for the arrest and he must be shown
the warrant of arrest, if any. He shall be
informed of his constitutional rights to remain
silent and to counsel, and that any statement
he might make could be used against him. The
person arrested shall have the right to
communicate with his lawyer, a relative, or
anyone he chooses by the most expedient
means — by telephone if possible — or by
letter or messenger. It shall be the
responsibility of the arresting officer to see to it
that this is accomplished. No custodial
investigation shall be conducted unless it be in
the presence of counsel engaged by the
reason arrested, by any person on his behalf,
or appointed by the court upon petition either of
the detainee himself or by anyone on his
behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with
the assistance of counsel. Any statement
obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory,
in whole or in part, shall be inadmissible in
evidence."
This was reiterated in People vs. Galit. 33
In People vs. Nicandro, 34 this Court declared
that one's right to be informed of the right to
remain silent and to counsel contemplates "the
transmission of meaningful information rather
than just the ceremonial and perfunctory
recitation of an abstract constitutional
principle." Thus, is not enough for the
interrogator to merely repeat to the person
under investigation the provisions of section
20, Article IV of the 1973 Constitution, now
Section 12, Article III of the 1987 Constitution;
the former must also explain the effects of such
provision in practical terms — e.g., what the
person under interrogation may or may not do -
and in a language the subject fairly
understands. The right "to be informed" carries
with it a correlative obligation on the part of the
police investigator to explain, and contemplates
effective communication which results in the
subject's understanding of what is conveyed.
Since it is comprehension that is sought to be
attained, the degree of explanation required will
necessarily vary and depend on the education,
intelligence and other relevant personal
circumstances of the person undergoing
investigation. In further ensuring the right to
counsel, it is not enough that the subject is
informed of such right; he should also be asked
if he wants to avail of the same and should be
told that he could ask for counsel if he so
desired or that one could be provided him at
his request. 35 If he decides not to retain
counsel of his choice or avail of one to be
provided for him and, therefore, chooses to
waive his right to counsel, such waiver, to be
valid and effective, must still be made with the
assistance of counsel. 36 That counsel must
be a lawyer. 37
The foregoing pronouncements are now
synthesized in paragraphs 1 and 3, Section 12,
Article III of the 1987 Constitution, to wit:
"SECTION 12(1). Any person under
investigation for the commission of an offense
shall have the right to be informed of his right
to remain silent and to have competent and
independent counsel preferably of his own
choice. If the person cannot afford the services
of counsel, he must be provided with one.
These rights cannot be waived except in writing
and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him."
The adjectives competent and independent,
which qualify the kind of counsel an accused is
entitled to during investigation, were not found
in the previous Constitution. Their incorporation
in the 1987 Constitution was thus meant to
stress the primacy of this right to counsel.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
A close scrutiny of the questioned extra-judicial
confession in the case at bar reveals all
possible violations of the appellant's right to
remain silent, to counsel and to be informed of
such rights, and of the safeguards prescribed
by this Court for the holding of custodial
interrogations.
(a) The interrogation was the conducted and
the confession was written in English a
language the appellant, a farmer in a remote
barangay of Pamplona, cannot speak and does
not understand; he only finished Grade II.
There is no evidence to show that the
interrogator, who was not even presented as a
witness and remains unidentified, translated
the questions and the answers into a dialect
known and fairly understood by the appellant.
(b) Appellant was not told that he could retain a
counsel of choice and that if he cannot afford to
do so, he could be provided with one.
(c) He did not sign any waiver of his right to
remain silent and to counsel.
(d) He was not assisted by any counsel during
the investigation. Instead, a certain Elpedio
Catacutan, who claimed to have appeared for
him as a "friend-counsel," 38 was present only
at the time that appellant was brought to the
office of Judge Catacutan for the preparation of
the jurat. It was precisely for this reason that
the following notations were inserted above the
jurat of the so-called extra-judicial confession:
"NOTE: ASSISTED BY:
(Sgd.) ELPEDIO B. CATACUTAN
(TYP) ELPEDIO B. CATACUTAN"
In reality, Catacutan signed not as counsel, but
only as a witness. Thus:
"Q Do you recall having signed as a witness of
an affidavit of one Jaime (sic) T. Ramirez which
affidavit is now marked as Exhibit "F"?
A Yes.
Q Can you tell the court where did you sign
that Exhibit "F"?
A I signed this affidavit in the office of the
Municipal Judge of Pamplona." 39
Moreover, it is to be observed that the
appellant does not even know the said Elpedio
Catacutan. 40
(e) Assuming arguendo that Elpedio Catacutan
may have been summoned to act as
appellant's counsel, he was, nevertheless, not
present during the custodial interrogation
which, by the way, was conducted exactly a
week before he appeared —or more correctly,
was made to appear — before Judge
Calumpang. His presence before the latter did
not change the situation. As this Court stated in
People vs. Burgos, 41 the securing of counsel
to help the accused when the latter subscribed
under oath to his statement at the Fiscal's
Office was too late and had no palliative effect;
it did not cure the absence of counsel at the
time of the custodial investigation when the
extra-judicial statement was being taken.
(f) Furthermore, Elpedio Calumpang is not a
lawyer; according to the trial court, he is "a
barister (sic)." In fact, he candidly admitted that
he is not a lawyer but that he obtained a law
degree from the Siliman University in 1959.
Unfortunately, however, he failed in three Bar
Examinations. 42
(g) There is no showing that the so-called
extra-judicial confession, which is in English,
was correctly explained and translated to the
appellant by Judge Calumpang. Although the
latter claimed in his testimony on direct
examination that he translated the same in the
local dialect to the appellant before the latter
affixed his signature thereto, 43 Elpedio
Catacutan categorically declared that it was the
interpreter, one Pedro Rodriguez, who
translated it to the appellant. Thus:
"Q Who is the interpreter who made the
translation?
A Pedro Rodriguez.
Q Were you there when the translation was
made?
A Sure.
Q So it was not the Judge who made the
translation, is that what you mean?
A The translation was course (sic) through the
interpreter." 44
(h) Finally, the kind of "advice" proffered by the
unidentified interrogator belongs to that
stereotyped class — a long question by the
investigator informing the appellant of his right
followed by a monosyllabic answer — which
this Court has condemned for being
unsatisfactory. 45 The investigator gave his
advice perfunctorily or in a pro-forma manner,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
obviously to pay mere lip service to the
prescribed norms. As this Court observed in
People vs. Newman, 46 this stereotyped
"advice":
" . . . has assumed the nature of a 'legal form'
or model. Its tired, punctilious, fixed and
artificially stately style does not create an
impression of voluntariness or even
understanding on the part of the accused. The
showing of a spontaneous, free and
unconstrained giving up of a right is missing."
Consequently, Exhibit "F", which is indisputably
an uncounselled confession or admission, is
inadmissible in evidence. The trial court,
therefore, committed a fatal error in admitting it.
2. We harbor very serious doubts about the
alleged statement given by Bombie Toting to
Sgt. Tabanao and Jaime Saguban identifying
the appellant and Teodoro Basay as the
perpetrators of the heinous crime. In the first
place, the trial court itself ruled that Bombie
was not a competent witness. We agree with
such a conclusion, not necessarily because
she was only six (6) years old, but because her
condition at the time she supposedly gave her
statement made it impossible for her to have
communicated effectively. She suffered the
following injuries:
"Infected hack wound from the right anterior
lumbar area transecting mid abdomen, inguinal
area left to the medial thigh left through and
through, with necrotic transected muscle." 47
She was taken from the crime scene only on 6
March 1986, or two (2) days after the
commission of the crime, and died in the
hospital on 7 March 1986. The doctor who first
attended to her when she arrived at the
Provincial Hospital, a certain Dr. Sy, was not
presented as a witness. On the other hand, the
doctor who attended to her before she died, Dr.
Edgar Cantalao, testified that when he last saw
Bombie alive, she could not talk. 48 It was this
inability to talk which led the trial court to
express its doubts on the veracity of the latter's
supposed statement:
" . . . Although persons of tender age are prone
to tell the truth, however, the Court must be
cautious in appreciating said testimony where
the person had a serious wound and had not
eaten for one day and one night. There is no
evidence to show that Bombie Toting told the
doctor as to who were the perpetrators of the
crime; neither did she tell her own brother,
Zosimo Toting, Jr. that it was the accused,
Teodoro Basay and Jaime Ramirez who killed
her parents and her brother and sisters and
burned their house. . . . The Court cannot
understand why P.C. Sgt. Tabano did not ask
Bombie Toting questions concerning the
commission of the crime by the accused.
Neither did the P.C. or (sic) the police take any
statement from her on her way to the hospital
or at the hospital. Surprisingly, Bombie Toting
did not even tell her own brother, Zosimo
Toting, Jr. that it was the accused who
committed the crime. Had the statement of
Bombie Toting been made to the doctor or to
the barangay captain or to any reputable
member of the community where the incident
happened, the Court will have to put weight
and consider her statement as a dying
declaration. Our experience has shown that
persons in authority are prone to fabricate or
misrepresent the facts to serve their own
purpose. Innocent people had been charged in
Court simply by the false statements of peace
officers. The Court therefore has to be cautious
when these peace officers testify in Court." 49
In the second place, as a result of the
foregoing observations, the trial court
completely disregarded Bombie Toting's so-
called statement as against Teodoro Basay.
We therefore see neither rhyme nor reason for
the trial court's admission of the same as
against the appellant.
3. While it may be true that the appellant ran
away when he first saw the armed law officers,
he did so merely out of fear of them. This act
should not be considered as the flight which is
indicative of guilt. The appellant had not left his
house or barangay since 4 March 1986, the
day the crime was committed. If he were
indeed one of the perpetrators and had the
intention to flee in order to avoid arrest, he
should have vanished sooner and should not
have remained in his house. Besides, if indeed
his running away could be construed as flight, it
could only be considered as circumstantial
evidence. Such evidence would still be
insufficient for a conviction. Under Section 4,
Rule 133 of the Rules of Court, in order that
circumstantial evidence may sustain a
conviction, there must, inter alia, be more than
one (1) circumstance. No other circumstance
was established in this case.
Hence, the appellant's guilt was not
established with moral certainty. He should be
acquitted.
We cannot, however, close this case without
making some observations about the legal
conclusions of the trial court anent the crimes
committed and the penalty imposed. The facts
 HUMAN RIGHTS PRELIMFULLTEXT CASES
indisputably establish that Zosimo Toting, Sr.,
Beatrice Toting and Bombie Toting were
stabbed and hacked before their house was
burned. Zosimo and Beatrice died immediately
while Bombie lived for a few days. As a matter
of fact, the thesis of the prosecution is that the
house was burned to conceal the stabbing and
hacking. As a result of this fire, Manolita Toting
and Manolo Toting suffered burns which
caused the death of the former; the latter,
however, survived due to timely medical
attention. Four (4) crimes were therefore
committed, viz.: three (3) separate murders
under Article 248 of the Revised Penal Code
50 for the deaths of Zosimo, Beatrice and
Bombie, and arson as punished under Section
5 of P.D. No. 1613 51 for the death of Manolita
and the injuries sustained by Manolo as a
consequence of the burning of the house. The
aforementioned Section 5 reads:
"SECTION 5. Where Death Results from
Arson. — If by reason of or on the occasion of
the arson death results, the penalty of
Reclusion Perpetua to death shall be
imposed."
Also, the information that was filed is clearly
duplicitous and thus vulnerable to a motion to
quash under Section 3(e), Rule 117 of the
Rules of Court. No such motion having been
filed, appellant is deemed to have waived the
defect.
Finally, We have time and again said that life
imprisonment is not a penalty provided for in
the Revised Penal Code and is not the same
as reclusion perpetua. 52 Unfortunately, the
trial court still disregarded this pronouncement.
It is hoped that it will not happen again.
WHEREFORE, the challenged Decision in
Criminal Case No. 7411 of Branch 40 of the
Regional Trial Court of Negros Oriental is
REVERSED and appellant JAIME RAMIREZ
alias "NEBOY" is hereby ACQUITTED with
costs de oficio. His immediate release from
detention is hereby ordered.
SO ORDERED.
G.R. Nos. L-68379-81 September 22, 1986
EVELIO B. JAVIER, petitioner,
vs.
THE COMMISSION ON ELECTIONS, and
ARTURO F. PACIFICADOR, respondents.
Raul S. Roco and Lorna Patajo-Kapunan for
petitioner.
CRUZ, J.:
The new Solicitor General has moved to
dismiss this petition on the ground that as a
result of supervening events it has become
moot and academic. It is not as simple as that.
Several lives have been lost in connection with
this case, including that of the petitioner
himself. The private respondent is now in
hiding. The purity of suffrage has been defiled
and the popular will scorned through a
confabulation of those in authority. This Court
cannot keep silent in the face of these terrible
facts. The motion is denied.
The petitioner and the private respondent were
candidates in Antique for the Batasang
Pambansa in the May 1984 elections. The
former appeared to enjoy more popular support
but the latter had the advantage of being the
nominee of the KBL with all its perquisites of
power. On May 13, 1984, the eve of the
elections, the bitter contest between the two
came to a head when several followers of the
petitioner were ambushed and killed, allegedly
by the latter's men. Seven suspects, including
respondent Pacificador, are now facing trial for
these murders. The incident naturally
heightened tension in the province and
sharpened the climate of fear among the
electorate. Conceivably, it intimidated voters
against supporting the Opposition candidate or
into supporting the candidate of the ruling
party.
It was in this atmosphere that the voting was
held, and the post-election developments were
to run true to form. Owing to what he claimed
were attempts to railroad the private
respondent's proclamation, the petitioner went
to the Commission on Elections to question the
canvass of the election returns. His complaints
were dismissed and the private respondent
was proclaimed winner by the Second Division
of the said body. The petitioner thereupon
came to this Court, arguing that the
proclamation was void because made only by a
division and not by the Commission on
Elections en banc as required by the
Constitution. Meanwhile, on the strength of his
proclamation, the private respondent took his
oath as a member of the Batasang Pambansa.
The case was still being considered by this
Court when on February 11, 1986, the
petitioner was gunned down in cold blood and
in broad daylight. The nation, already indignant
over the obvious manipulation of the
presidential elections in favor of Marcos, was
 HUMAN RIGHTS PRELIMFULLTEXT CASES
revolted by the killing, which flaunted a scornful
disregard for the law by the assailants who
apparently believed they were above the law.
This ruthless murder was possibly one of the
factors that strengthened the cause of the
Opposition in the February revolution that
toppled the Marcos regime and installed the
present government under President Corazon
C. Aquino.
The abolition of the Batasang Pambansa and
the disappearance of the office in dispute
between the petitioner and the private
respondent-both of whom have gone their
separate ways-could be a convenient
justification for dismissing this case. But there
are larger issues involved that must be
resolved now, once and for all, not only to
dispel the legal ambiguities here raised. The
more important purpose is to manifest in the
clearest possible terms that this Court will not
disregard and in effect condone wrong on the
simplistic and tolerant pretext that the case has
become moot and academic.
The Supreme Court is not only the highest
arbiter of legal questions but also the
conscience of the government. The citizen
comes to us in quest of law but we must also
give him justice. The two are not always the
same. There are times when we cannot grant
the latter because the issue has been settled
and decision is no longer possible according to
the law. But there are also times when
although the dispute has disappeared, as in
this case, it nevertheless cries out to be
resolved. Justice demands that we act then,
not only for the vindication of the outraged
right, though gone, but also for the guidance of
and as a restraint upon the future.
It is a notorious fact decried by many people
and even by the foreign press that elections
during the period of the Marcos dictatorship
were in the main a desecration of the right of
suffrage. Vote-buying, intimidation and
violence, illegal listing of voters, falsified
returns, and other elections anomalies
misrepresented and vitiated the popular will
and led to the induction in office of persons
who did not enjoy the confidence of the
sovereign electorate. Genuine elections were a
rarity. The price at times was human lives. The
rule was chicanery and irregularity, and on all
levels of the polls, from the barangay to the
presidential. This included the rigged
plebiscites and referenda that also elicited the
derision and provoked the resentments of the
people.
Antique in 1984 hewed to the line and equaled
if it did not surpass the viciousness of elections
in other provinces dominated by the KBL.
Terrorism was a special feature, as
demonstrated by the killings previously
mentioned, which victimized no less than one
of the main protagonists and implicated his
rival as a principal perpetrator. Opposition
leaders were in constant peril of their lives
even as their supporters were gripped with fear
of violence at the hands of the party in power.
What made the situation especially deplorable
was the apparently indifferent attitude of the
Commission on Elections toward the anomalies
being committed. It is a matter of record that
the petitioner complained against the terroristic
acts of his opponents. All the electoral body did
was refer the matter to the Armed Forces
without taking a more active step as befitted its
constitutional role as the guardian of free,
orderly and honest elections. A more assertive
stance could have averted the Sibalom election
eve massacre and saved the lives of the nine
victims of the tragedy.
Public confidence in the Commission on
Elections was practically nil because of its
transparent bias in favor of the administration.
This prejudice left many opposition candidates
without recourse except only to this Court.
Alleging serious anomalies in the conduct of
the elections and the canvass of the election
returns, the petitioner went to the Commission
on Elections to prevent the impending
proclamation of his rival, the private respondent
herein. 1 Specifically, the petitioner charged
that the elections were marred by "massive
terrorism, intimidation, duress, vote-buying,
fraud, tampering and falsification of election
returns under duress, threat and intimidation,
snatching of ballot boxes perpetrated by the
armed men of respondent
2
Pacificador."   Particular mention was made of
the municipalities of Caluya, Cabate, Tibiao,
Barbaza, Laua-an, and also of San Remigio,
where the petitioner claimed the election
returns were not placed in the ballot boxes but
merely wrapped in cement bags or Manila
paper.
On May 18, 1984, the Second Division of the
Commission on Elections directed the
provincial board of canvassers of Antique to
proceed with the canvass but to suspend the
proclamation of the winning candidate until
further orders.3 On June 7, 1984, the same
Second Division ordered the board to
immediately convene and to proclaim the
winner without prejudice to the outcome of the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
case before the
Commission.4 On certiorari before this Court,
the proclamation made by the board of
canvassers was set aside as premature,
having been made before the lapse of the 5-
day period of appeal, which the petitioner had
seasonably made. 5 Finally, on July 23, 1984,
the Second Division promulgated the decision
now subject of this petition which inter
alia proclaimed Arturo F. Pacificador the
elected assemblyman of the province of
Antique. 6
This decision was signed by Chairman
Victoriano Savellano and Commissioners
Jaime Opinion and Froilan M. Bacungan.
Previously asked to inhibit himself on the
ground that he was a former law partner of
private respondent Pacificador, Opinion had
refused.7
The petitioner then came to this Court, asking
us to annul the said decision.
The core question in this case is one of
jurisdiction, to wit: Was the Second Division of
the Commission on Elections authorized to
promulgate its decision of July 23, 1984,
proclaiming the private respondent the winner
in the election?
The applicable provisions are found in Article
XII-C, Sections 2 and 3, of the 1973
Constitution.
Section 2 confers on the Commission on
Elections the power to:
(2) Be the sole judge of all contests
relating to the election, returns and
qualifications of all member of the
Batasang Pambansa and elective
provincial and city officials.
Section 3 provides:
The Commission on Elections may
sit en banc or in three divisions. All
election cases may be heard and
decided by divisions except contests
involving members of the Batasang
Pambansa, which shall be heard and
decided en banc. Unless otherwise
provided by law, all election cases shall
be decided within ninety days from the
date of their submission for decision.
While both invoking the above provisions, the
petitioner and the respondents have arrived at
opposite conclusions. The records are
voluminous and some of the pleadings are
exhaustive and in part even erudite. And well
they might be, for the noble profession of the
law-despite all the canards that have been
flung against it-exerts all efforts and considers
all possible viewpoints in its earnest search of
the truth.
The petitioner complains that the Proclamation
made by the Second Division is invalid
because all contests involving the members of
the Batasang Pambansa come under the
jurisdiction of the Commission on Elections en
banc. This is as it should be, he says, to insure
a more careful decision, considering the
importance of the offices involved. The
respondents, for their part, argue that only
contests need to be heard and decided en
banc and all other cases can be-in
fact, should be-filed with and decided only by
any of the three divisions.
The former Solicitor General makes much of
this argument and lays a plausible distinction
between the terms "contests" and "cases" to
prove his point. 8 Simply put, his contention is
that the pre-proclamation controversy between
the petitioner and the private respondent was
not yet a contest at that time and therefore
could be validly heard by a mere division of the
Commission on Elections, consonant with
Section 3. The issue was at this stage still
administrative and so was resoluble by the
Commission under its power to administer all
laws relative to the conduct of elections,9 not its
authority as sole judge of the election contest.
A contest, according to him, should involve a
contention between the parties for the same
office "in which the contestant seeks not only to
oust the intruder but also to have himself
inducted into the office." 10 No proclamation
had as yet been made when the petition was
filed and later decided. Hence, since neither
the petitioner nor the private respondent had at
that time assumed office, there was no
Member of the Batasang Pambansa from
Antique whose election, returns or
qualifications could be examined by the
Commission on Elections en banc.
In providing that the Commission on Elections
could act in division when deciding election
cases, according to this theory, the Constitution
was laying down the general rule. The
exception was the election contest involving
the members of the Batasang Pambansa,
which had to be heard and decided en
banc. 11 The en banc requirement would apply
only from the time a candidate for the Batasang
Pambansa was proclaimed as winner, for it
was only then that a contest could be permitted
 HUMAN RIGHTS PRELIMFULLTEXT CASES
under the law. All matters arising before such
time were, necessarily, subject to decision only
by division of the Commission as these would
come under the general heading of "election
cases."
As the Court sees it, the effect of this
interpretation would be to divide the jurisdiction
of the Commission on Elections into two, viz.:
(1) over matters arising before the
proclamation, which should be heard and
decided by division in the exercise of its
administrative power; and (2) over matters
arising after the proclamation, which could be
heard and decided only en banc in the exercise
of its judicial power. Stated otherwise, the
Commission as a whole could not act as sole
judge as long as one of its divisions was
hearing a pre-proclamation matter affecting the
candidates for the Batasang Pambansa
because there was as yet no contest; or to put
it still another way, the Commission en
banc could not do what one of its divisions was
competent to do, i.e., decide a pre-
proclamation controversy. Moreover, a mere
division of the Commission on Elections could
hear and decide, save only those involving the
election, returns and qualifications of the
members of the Batasang Pambansa, all cases
involving elective provincial and city
officials from start to finish, including pre-
proclamation controversies and up to the
election protest. In doing so, it would exercise
first administrative and then judicial powers.
But in the case of the Commission en banc, its
jurisdiction would begin only after the
proclamation was made and a contest was
filed and not at any time and on any matter
before that, and always in the exercise only of
judicial power.
This interpretation would give to the part more
powers than were enjoyed by the whole,
granting to the division while denying to
the banc. We do not think this was the intention
of the Constitution. The framers could not have
intended such an irrational rule.
We believe that in making the Commission on
Elections the sole judge of all contests
involving the election, returns and qualifications
of the members of the Batasang Pambansa
and elective provincial and city officials, the
Constitution intended to give it full authority to
hear and decide these cases from beginning to
end and on all matters related thereto,
including those arising before the proclamation
of the winners.
It is worth observing that the special procedure
for the settlement of what are now called "pre-
proclamation controversies" is a relatively
recent innovation in our laws, having been
introduced only in 1978, through P.D. No.
1296, otherwise known as the 1978 Election
Code. Section 175 thereof provided:
Sec. 175. Suspension and annulment of
proclamation.-The Commission shall be
the sole judge of all pre-proclamation
controversies and any of its decisions,
orders or rulings shall be final and
executory. It may, motu proprio or upon
written petition, and after due notice and
hearing order the suspension of the
proclamation of a candidate-elect or
annul any proclamation, if one has been
made, on any of the grounds mentioned
in Sections 172, 173 and 174 thereof.
Before that time all proceedings affecting the
election, returns and qualifications of public
officers came under the complete jurisdiction of
the competent court or tribunal from beginning
to end and in the exercise of judicial power
only. It therefore could not have been the
intention of the framers in 1935, when the
Commonwealth Charter was adopted, and
even in 1973, when the past Constitution was
imposed, to divide the electoral process into
the pre-proclamation stage and the post-
proclamation stage and to provide for a
separate jurisdiction for each stage,
considering the first administrative and the
second judicial.
Besides, the term "contest" as it was
understood at the time Article XII-C. Section
2(2) was incorporated in the 1973 Constitution
did not follow the strict definition of a contention
between the parties for the same office. Under
the Election Code of 1971, which presumably
was taken into consideration when the 1973
Constitution was being drafted, election
contests included the quo warranto petition
that could be filed by any voter on the ground
of disloyalty or ineligibility of the contestee
although such voter was himself not claiming
the office involved. 12
The word "contests" should not be given a
restrictive meaning; on the contrary, it should
receive the widest possible scope conformably
to the rule that the words used in the
Constitution should be interpreted liberally. As
employed in the 1973 Constitution, the term
should be understood as referring to any
matter involving the title or claim of title to an
elective office, made before or after
proclamation of the winner, whether or not the
contestant is claiming the office in dispute.
Needless to stress, the term should be given a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
consistent meaning and understood in the
same sense under both Section 2(2) and
Section 3 of Article XII-C of the Constitution.
The phrase "election, returns and
qualifications" should be interpreted in its
totality as referring to all matters affecting the
validity of the contestee's title. But if it is
necessary to specify, we can say that "election"
referred to the conduct of the polls, including
the listing of voters, the holding of the electoral
campaign, and the casting and counting of the
votes; "returns" to the canvass of the returns
and the proclamation of the winners, including
questions concerning the composition of the
board of canvassers and the authenticity of the
election returns and "qualifications" to matters
that could be raised in a quo
warranto proceeding against the proclaimed
winner, such as his disloyalty or ineligibility or
the inadequacy of his certificate of candidacy.
All these came under the exclusive jurisdiction
of the Commission on Elections insofar as they
applied to the members of the defunct
Batasang Pambansa and, under Article XII-C,
Section 3, of the 1973 Constitution, could be
heard and decided by it only en banc.
We interpret "cases" as the generic term
denoting the actions that might be heard and
decided by the Commission on Elections, only
by division as a general rule except where the
case was a "contest" involving members of the
Batasang Pambansa, which had to be heard
and decided en banc.
As correctly observed by the petitioner, the
purpose of Section 3 in requiring that cases
involving members of the Batasang Pambansa
be heard and decided by the Commission en
banc was to insure the most careful
consideration of such cases. Obviously, that
objective could not be achieved if the
Commission could act en banc only after the
proclamation had been made, for it might then
be too late already. We are all-too-familiar with
the grab-the-proclamation-and-delay-the-
protest strategy of many unscrupulous
candidates which has resulted in the frustration
of the popular will and the virtual defeat of the
real winners in the election. The respondent's
theory would make this gambit possible for the
pre- proclamation proceedings, being summary
in nature, could be hastily decided by only
three members in division, without the care and
deliberation that would have otherwise been
observed by the Commission en banc.
After that, the delay. The Commission en
banc might then no longer be able to rectify in
time the proclamation summarily and not very
judiciously made by the division. While in the
end the protestant might be sustained, he
might find himself with only a Phyrric victory
because the term of his office would have
already expired.
It may be argued that in conferring the initial
power to decide the pre- proclamation question
upon the division, the Constitution did not
intend to prevent the Commission en banc from
exercising the power directly, on the theory that
the greater power embraces the lesser. It could
if it wanted to but then it could also allow the
division to act for it. That argument would
militate against the purpose of the provision,
which precisely limited all questions affecting
the election contest, as distinguished from
election cases in general, to the jurisdiction of
the Commission en banc as sole judge thereof.
"Sole judge" excluded not only all other
tribunals but also and even the division of the
Commission A decision made on the contest
by less than the Commission en banc would
not meet the exacting standard of care and
deliberation ordained by the Constitution
Incidentally, in making the Commission the
"sole judge" of pre- proclamation controversies
in Section 175, supra, the law was obviously
referring to the body sitting en banc. In fact, the
pre-proclamation controversies involved
in Aratuc vs. Commission on
Elections, 13 where the said provision was
applied, were heard and decided en banc.
Another matter deserving the highest
consideration of this Court but accorded
cavalier attention by the respondent
Commission on Elections is due process of
law, that ancient guaranty of justice and fair
play which is the hallmark of the free society.
Commissioner Opinion ignored it. Asked to
inhibit himself on the ground that he was
formerly a law partner of the private
respondent, he obstinately insisted on
participating in the case, denying he was
biased. 14
Given the general attitude of the Commission
on Elections toward the party in power at the
time, and the particular relationship between
Commissioner Opinion and MP Pacificador,
one could not be at least apprehensive, if not
certain, that the decision of the body would be
adverse to the petitioner. As in fact it was.
Commissioner Opinion's refusal to inhibit
himself and his objection to the transfer of the
case to another division cannot be justified by
any criterion of propriety. His conduct on this
matter belied his wounded protestations of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
innocence and proved the motives of the
Second Division when it rendered its decision.
This Court has repeatedly and consistently
demanded "the cold neutrality of an impartial
judge" as the indispensable imperative of due
process. 15 To bolster that requirement, we
have held that the judge must not only be
impartial but must also appear to be impartial
as an added assurance to the parties that his
decision will be just.16 The litigants are entitled
to no less than that. They should be sure that
when their rights are violated they can go to a
judge who shall give them justice. They must
trust the judge, otherwise they will not go to
him at all. They must believe in his sense of
fairness, otherwise they will not seek his
judgment. Without such confidence, there
would be no point in invoking his action for the
justice they expect.
Due process is intended to insure that
confidence by requiring compliance with what
Justice Frankfurter calls the rudiments of fair
play. Fair play cans for equal justice. There
cannot be equal justice where a suitor
approaches a court already committed to the
other party and with a judgment already made
and waiting only to be formalized after the
litigants shall have undergone the charade of a
formal hearing. Judicial (and also extra-judicial)
proceedings are not orchestrated plays in
which the parties are supposed to make the
motions and reach the denouement according
to a prepared script. There is no writer to
foreordain the ending. The judge will reach his
conclusions only after all the evidence is in and
all the arguments are filed, on the basis of the
established facts and the pertinent law.
The relationship of the judge with one of the
parties may color the facts and distort the law
to the prejudice of a just decision. Where this is
probable or even only posssible, due process
demands that the judge inhibit himself, if only
out of a sense of delicadeza. For like Caesar's
wife, he must be above suspicion.
Commissioner Opinion, being a lawyer, should
have recognized his duty and abided by this
well-known rule of judicial conduct. For refusing
to do so, he divested the Second Division of
the necessary vote for the questioned decision,
assuming it could act, and rendered the
proceeding null and void. 17
Since this case began in 1984, many
significant developments have taken place, not
the least significant of which was the February
revolution of "people power" that dislodged the
past regime and ended well nigh twenty years
of travail for this captive nation. The petitioner
is gone, felled by a hail of bullets sprayed with
deadly purpose by assassins whose motive is
yet to be disclosed. The private respondent has
disappeared with the "pomp of power" he had
before enjoyed. Even the Batasang Pambansa
itself has been abolished, "an iniquitous vestige
of the previous regime" discontinued by the
Freedom Constitution. It is so easy now, as has
been suggested not without reason, to send
the recrds of this case to the archives and
say the case is finished and the book is closed.
But not yet.
Let us first say these meager words in tribute to
a fallen hero who was struck down in the vigor
of his youth because he dared to speak against
tyranny. Where many kept a meekly silence for
fear of retaliation, and still others feigned and
fawned in hopes of safety and even reward, he
chose to fight. He was not afraid. Money did
not tempt him. Threats did not daunt him.
Power did not awe him. His was a singular and
all-exacting obsession: the return of freedom to
his country. And though he fought not in the
barricades of war amid the sound and smoke
of shot and shell, he was a soldier nonetheless,
fighting valiantly for the liberties of his people
against the enemies of his race, unfortunately
of his race too, who would impose upon the
land a perpetual night of dark enslavement. He
did not see the breaking of the dawn, sad to
say, but in a very real sense Evelio B. Javier
made that dawn draw nearer because he was,
like Saul and Jonathan, "swifter than eagles
and stronger than lions."
A year ago this Court received a letter which
began: "I am the sister of the late Justice
Calixto Zaldivar. I am the mother of Rhium Z.
Sanchez, the grandmother of Plaridel Sanchez
IV and Aldrich Sanchez, the aunt of Mamerta
Zaldivar. I lost all four of them in the election
eve ambush in Antique last year." She
pleaded, as so did hundreds of others of her
provincemates in separate signed petitions
sent us, for the early resolution of that horrible
crime, saying: "I am 82 years old now. I am
sick. May I convey to you my prayer in church
and my plea to you, 'Before I die, I would like to
see justice to my son and grandsons.' May I
also add that the people of Antique have not
stopped praying that the true winner of the last
elections will be decided upon by the Supreme
Court soon."
That was a year ago and since then a new
government has taken over in the wake of the
February revolution. The despot has escaped,
and with him, let us pray, all the oppressions
and repressions of the past have also been
 HUMAN RIGHTS PRELIMFULLTEXT CASES
banished forever. A new spirit is now upon our
land. A new vision limns the horizon. Now we
can look forward with new hope that under the
Constitution of the future every Filipino shall be
truly sovereign in his own country, able to
express his will through the pristine ballow with
only his conscience as his counsel.
This is not an impossible dream. Indeed, it is
an approachable goal. It can and will be won if
we are able at last, after our long ordeal, to say
never again to tyranny. If we can do this with
courage and conviction, then and only then,
and not until then, can we truly say that the
case is finished and the book is closed.
WHEREFORE, let it be spread in the records
of this case that were it not for the supervening
events that have legally rendered it moot and
academic, this petition would have been
granted and the decision of the Commission on
Elections dated July 23, 1984, set aside as
violative of the Constitution.
SO ORDERED.
Feria, Yap, Narvasa, Alampay and Paras, JJ.,
concur.
Fernan and Gutierrez, Jr., JJ., concur in the
result.
 
Separate Opinions
TEEHANKEE, C.J., concurring:
I concur and reserve the filing of a separate
concurrence.
MELENCIO-HERRERA, J., concurring in the
result:
I concur in the result. The questioned Decision
of the Second Division of the COMELEC, dated
July 23, 1984, proclaiming private respondent,
Arturo F. Pacificador, as the duly elected
Assemblyman of the province of Antique,
should be set aside for the legal reason that all
election contests, without any distinction as to
cases or contests, involving members of the
defunct Batasang Pambansa fall under the
jurisdiction of the COMELEC en banc pursuant
to Sections 2 and 3 of Article XII-C of the 1973
Constitution.
FELICIANO, J., concurring in the result:
I agree with the result reached, that is,
although this petition has become moot and
academic, the decision, dated 23 July 1984, of
the Second Division of the Commission on
Elections which had proclaimed Arturo F.
Pacificador as the duly elected Assemblyman
of the Province of Antique must be set aside or,
more accurately, must be disregarded as bereft
of any effect in law. I reach this result on the
same single, precisely drawn, ground relied
upon by Melencio-Herrera, J.: that all election
contests involving members of the former
Batasan Pambansa must be decided by the
Commission on Elections en banc under
Sections 2 and 3 of Article XII-C of the 1973
Constitution. These Sections do not distinguish
between "pre-proclamation" and "post-
proclamation" contests nor between "cases"
and "contests."
People vs. Ramos
G.R. No. 142577. December 27, 2002
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, vs. RUPERTO RAMOS y DELA
CRUZ, accused-appellant.
DECISION
CALLEJO, SR., J.:
This is an automatic review of the Decision
dated November 19, 1999 of the Regional Trial
Court (RTC) of Malolos, Bulacan, Branch 21 in
Criminal Case No. 659-M-98 finding accused-
appellant Ruperto Ramos y dela Cruz guilty
beyond reasonable doubt of the crime of rape
and likewise imposing upon him the supreme
penalty of death. Accused-appellant was
ordered to pay private complainant the amount
of P75,000.00 as moral damages.
Upon the complaint of the victim, Jocelyn
Ramos, an Information charging accused-
appellant of rape was filed before the RTC of
Malolos, Bulacan. The Information states:
The undersigned Asst. Provincial Prosecutor,
on complaint of the offended party, accuses
Ruperto Ramos y dela Cruz of the crime of
Rape, penalized under the provisions of Art.
335 of the Revised Penal Code, as amended
by R.A. 8353, committed as follows:
That on or about the 14th day of December,
1997, in the municipality of Sta. Maria, province
of Bulacan, Philippines and within the
jurisdiction of this Honorable Court, the said
accused, Ruperto Ramos y dela Cruz, being an
uncle of complainant Jocelyn Ramos, a 16 year
old mentally retarded minor, and knowing of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
her mental condition, did then and there wilfilly,
unlawfully and feloniously, by means of threats
or intimidation and with lewd designs, have
carnal knowledge of said complainant against
her will and without her consent.
Contrary to law.1cräläwvirtualibräry
During the arraignment, accused-appellant,
with the assistance of counsel, pleaded not
guilty to the charge.
At the trial, the prosecution adduced evidence
that the spouses Efren Ramos and Fortunata
Ramos have two children, namely, Jocelyn,
then fifteen years old at the time of the
commission of the crime, and Mary Grace, who
was then six years old. Fortunata and her
children resided in a compound in Partida
Pulong Buhangin, Sta. Maria, Bulacan.
Accused-appellant, the older brother of Efren,
resided in the same compound. His house was
about twenty meters away from the house of
Efren and Fortunata. Efren worked abroad. He
had been away from home for several years
already.
On December 14, 1997, at around noontime,
Jocelyn was outside the house playing with her
younger sister Mary Grace and their seven-
year old neighbor Joel Santiago. While the
children were busy playing, accused-appellant,
then wearing an undershirt and shorts, waved
his hand to Jocelyn and motioned for her to
come to his house. Jocelyn dutifully
approached accused-appellant and entered his
house through the kitchen. Once Jocelyn was
inside the house, accused-appellant locked the
door to the kitchen. He then led her to his
bedroom. Once they were inside, accused-
appellant locked the bedroom door. He
undressed Jocelyn and made her lie down on
the bed. Accused-appellant placed himself on
top of her. He spread her legs apart while he
mashed her breast and sucked her nipples.
Thereafter, accused-appellant inserted his
penis into her sexual organ. Jocelyn felt pain
as he made the pumping motion while inserting
his private part into hers. Jocelyn could not do
anything but cry. Accused-appellant threatened
her by gnashing his teeth and ordered her not
to tell anyone else. According to Jocelyn, that
was not the first that accused-appellant had
sexually abused her.
Unknown to accused-appellant, Mary Grace
and Joel saw Jocelyn enter the house of
accused-appellant that day. They went to the
window of the house of accused-appellant and
propped themselves up alternately on each
others shoulder to be able to peep through the
window. Joel saw Jocelyn lying on the bed
totally naked, with accused-appellant on top of
her. Joel saw accused-appellant inserting his
penis into her vagina. Mary Grace in turn saw
accused-appellant fondle the breasts of
Jocelyn while she was lying down and
thereafter insert his hand into Jocelyns
underwear.
At about 4:00 p.m. that day, Mary Grace told
her mother Fortunata about what transpired
between accused-appellant and Jocelyn. When
Fortunata confronted Jocelyn about it, the latter
confirmed what Mary Grace had told their
mother. Since her husband was abroad,
Fortunata went to Rafael Ramos, the older
brother of Efren and accused-appellant, for
guidance. Rafael advised her to file a criminal
complaint against accused-appellant for his
dastardly acts.
Following her brother-in-laws advice,
Fortunata, on behalf of Jocelyn, filed a criminal
complaint against accused-appellant for rape
with the Municipal Trial Court (MTC) of Sta.
Maria, Bulacan on December 15, 1997. The
complaint was signed by Fortunata. Jocelyn
affixed her thumbmark thereto.2 Jocelyn was
16 years old at the time. In her sworn
statement, Fortunata claimed that accused-
appellant raped Jocelyn.3cräläwvirtualibräry
Dr. Manuel Aves, medico-legal of the Bulacan
Provincial Crime Laboratory, conducted a
genital examination of Jocelyn on December
17, 1997. He found multiple healed lacerations
at 9 and 11 oclock positions on Jocelyns
hymen. He opined that the lacerations could
have been caused by sexual intercourse. Dr.
Aves likewise declared that Jocelyn was
suffering from moderate mental retardation,
and placed her mental capacity equivalent to
that of a six- or seven-year old
child.4cräläwvirtualibräry
After a series of psychiatric examinations
conducted on her by Dr. Bernadette Arcena of
the National Center for Mental Health, the latter
confirmed that Jocelyn was indeed a mental
retardate whose mental age was equivalent to
that of a six-year old child.5cräläwvirtualibräry
For his part, accused-appellant denied having
any carnal knowledge of Jocelyn. He admitted
that Jocelyn is his niece, being the daughter of
Efren, his younger brother. Accused-appellant
claimed that he was in his house on December
14, 1997 with his brother-in-law Victor
Gamboa, his niece Mildred Ramos who was
the wife of his nephew Roland Ramos, his five-
year old son Ryan, and Rolands and Mildreds
 HUMAN RIGHTS PRELIMFULLTEXT CASES
daughter, Ranyamae Ramos. Accused-
appellant asserted that Jocelyn never went to
his house on December 14, 1997.
Mildred Ramos corroborated accused-
appellants claim and testified that both of them
were in their house the whole day on
December 14, 1997, and that she did not see
Jocelyn inside the house or enter accused-
appellants bedroom on that day.
Victor Gamboa testified that his sister and
accused-appellant were married. The couple
had a son named Ryan. They resided in
Dagupan City until accused-appellants wife
died in 1996. By then, Ryan was already four
years old. After his wifes death, accused-
appellant left Dagupan City and resided in the
house of Roland Ramos and Mildred Ramos,
leaving Ryan Ramos in the custody of Victor
Gamboa. On December 13, 1997, at about
3:00 p.m., Victor Gamboa and Ryan arrived in
Sta. Maria, Bulacan to visit accused-appellant.
Victor Gamboa and Ryan stayed in the house
of Roland Ramos and Mildred Ramos the
whole day on December 14, 1997. He and
Ryan left at about 6:00 p.m. and returned to
Dagupan City. He never saw Jocelyn in said
house the whole day on December 14, 1997.
Accused-appellant further testified that
Fortunata was just envious of him because his
(accused-appellants) inheritance was still intact
while that of Fortunatas family had already
been depleted. He further claimed that
Fortunata bore a grudge against him because
she borrowed P500.00 or P300.00 from him
but he refused to lend her any amount; and
that he caused the removal of the illegal
electricity connection in Fortunatas house.
Accused-appellant claimed that while he was in
prison, Fortunatas driver Domingo came to him
and demanded the payment of half a million
pesos as settlement of the case but accused-
appellant refused to pay as he did not have
such amount of money. Accused-appellant also
asserted that Jocelyn was always out of the
house with her barkadas, implying that she
could have been sexually abused while with
them.
The trial court rendered judgment finding
appellant guilty beyond reasonable doubt of
raping his niece Jocelyn and sentencing him to
suffer the supreme penalty of death. The
dispositive portion of the trial courts decision
reads:
WHEREFORE, this Court finds and so holds
accused RUPERTO RAMOS to be GUILTY
beyond reasonable doubt, of the crime of Rape
as defined and penalized under Article 335 of
the Revised Penal Code, as amended by R.A.
8353 with the attendant aggravating
circumstances that the victim is under eighteen
years of age and the offender is a x x x relative
by consanguinity or affinity within the the (sic)
third civil degree. x x x.
Relative thereto, this Court cannot find a way to
differ from the High Courts impression that of
all the so-called heinous crimes, none perhaps
more clearly provokes feelings of outrage,
detestation and disgust than incestuous rape.
(People vs. Baculi, 246 SCRA 756)
Accordingly, absent any circumstances that
would mitigate the commission thereof, he is
hereby sentenced to suffer the supreme
penalty of DEATH by lethal injection.
In line with established jurisprudence, the said
accused is also ordered to indemnify the
offended party Jocelyn Ramos, in the sum
of P75,000.00 for moral damages.
With costs against the accused.
SO ORDERED.6cräläwvirtualibräry
In his appeal brief, accused-appellant assails
the decision of the trial court, alleging that:
I
THE COURT A QUO GRAVELY ERRED IN
GIVING CREDENCE TO THE TESTIMONIES
OF THE PROSECUTION WITNESSES AND
IN TOTALLY IGNORING/DISREGARDING
THE VERSION OF THE DEFENSE.
II
THE COURT A QUO GRAVELY ERRED IN
FINDING THE ACCUSED-APPELLANT
GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME CHARGED.7cräläwvirtualibräry
The issues raised by appellant shall be
resolved jointly as they are interrelated.
We agree with accused-appellants pose that, in
reviewing rape cases, the court has always
been guided by three (3) well-entrenched
principles: (1) an accusation of rape can be
made with facility and while the accusation is
difficult to prove, it is even more difficult for
accused, though innocent, to disprove; (2)
considering that in the nature of things, only
two persons are usually involved in the crime of
rape, the testimony of the complainant should
be scrutinized with great caution; and (3) the
evidence for the prosecution must stand or fall
 HUMAN RIGHTS PRELIMFULLTEXT CASES
on its own merits and cannot be allowed to A He is the brother of my father, Your Honor.
draw strength from the weakness of the
evidence for the defense.8 The primordial Q Who is older Ruperto or your father?
consideration in a determination concerning the
crime of rape is the credibility and probative A Ruperto, Your Honor.
weight of complainants
testimony.9cräläwvirtualibräry Q What is the name of your father?

The legal aphorism is that the findings of the
trial court, its conclusions culled from said
findings, its calibration of the testimonial
evidence of the parties and the probative
weight thereof are accorded, great respect, if
not conclusive effect, by the appellate court
because of the unique advantage of the trial
court of monitoring and observing at close
range the demeanor, deportment and conduct
of said witnesses as they regale the trial court
with their testimonies. In contrast, the appellate
courts must contend itself only with the mute
pages of the original records and the evidence
adduced by the parties elevated by the trial
court.10cräläwvirtualibräry
In this case, the trial court found Jocelyn
credible and gave full probative weight to her
testimony thus:
A Efren Ramos, Your Honor.
Atty. Bernabe:
Q Sometime in December 14, 1997, do you
recall if you have met your uncle Ruperto
Ramos?
A Yes, sir.
Q How did you come to see and meet the
accused Ruperto Ramos?
A He kept on looking at me, Sir.
Q And when he was looking at you on that date
of December 14, 1997, what happened next?
A He was undressing me, Sir.

More so, as herein observed, when Jocelyn Q In what place that you were being undressed
has been able to communicate her experience by the accused?
in a manner that was clear as well as
consistent. Neither was her testimony attended A Inside his bedroom, Sir.
by material flaws in the cross-examination. On
the contrary, more details were extracted of her Q How come that you were at the bedroom on
regarding the incident in question. Hence, we your uncle on that day?
find no valid reason to disregard or discredit
her testimony.11cräläwvirtualibräry A He was calling me, Sir.

Indeed, the findings of the trial court are Court:

buttressed by the testimony of Jocelyn as she
vividly recalled how accused-appellant defiled Q What time of the day is that?
her, with tears welling from her eyes, her sex
organ throbbing with pain caused by penile A Noon time, Your Honor.
penetration:
Atty. Bernabe:
Atty. Bernabe:
Q Where were you when you were being called
Q Madam Witness do you know the accused in by your uncle?
this case Ruperto Ramos?
A I was in the house of Ka Nene, Sir.
A Yes, sir.
Q Why were you there in the house of Ka
Q If he is inside the court room will you please Nene?
point him to us?
A I was playing with Grace, Sir.
A (The witness is pointing to a man in
handcuff.) Q Who is this Grace?

Court: A My sister, Sir.

Q Why do you know the accused?

 HUMAN RIGHTS PRELIMFULLTEXT CASES
Q Aside from Grace who else those you were
playing with?
A Joel, Sir.
Q How far is this house of Ka Nene to the
house of Ruperto Ramos?
A Further than this wall, Sir.
Court:
Q How about that door?
A That is, Your Honor, (about 6 meters.)
Atty. Bernabe:
Q As you were called by your uncle, was he
shouting or how were you called?
A He was waving his hand at me, Sir.
Q After he waved his hand, what did you do?
A I approached him, Sir.
Q Did he say anything when you approached
him?
A Yes, Sir.
Q What was that?
A He asked me to enter the house, Sir.
Q After entering the house, what happened
next?
A He went to the kitchen and locked the
doorknob, Sir.
Q What happened after?
A He made me enter his bedroom and locked
the doorknob, Sir.
Q And when the two of you were already inside
his bedroom and locked the doorknob what
happened?
A He undressed me and made me lie down on
his bed, sir.
Q Before you were made to lie down on the
bed, what did you do?
A He placed himself on top of me, sir.
Q When you were already lying down what did
Ruperto Ramos do to you?
A He placed on top of me. He was doing the
pumping, "kumakantot sa akin" sir.
Q How did he do that?
A My legs were spread, sir.
Q What else?
A He was sucking my nipples, sir.
Q What else did he do?
A He was biting my breast, sir.
Q What else did he do aside from those you
have already said?
A (The witness is hesitating.) No, sir.
Court:
Q What was the attire of the accused when he
was calling you?
A Sando and shorts, Your Honor.
Q And what was his attire when he placed on
top of you?
A He was wearing long maong and sando,
Your Honor.
Q Was it short or long pants?
A Short, Your Honor.
Atty. Bernabe:
Q How about you when you were already lying
down and your nipple being sucked by the
accused?
A I was naked, Sir.
Q How about at the time when you said the
accused was pumping on top of you, did you
wear anything?
A I was cloth, Sir.
Q How about the accused was he wearing
anything when he pumped on you?
Atty. Balagtas:
Already answered.
Court:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Q What about you when you were lying, what Atty. Bernabe:
was your position was (sic) you pacing (sic)
down or pacing (sic) up? Q Why did you feel pain?

A Pacing (sic) me, Your Honor.
Atty. Bernabe:
Q You made mention a while ago that your
legs were spread.
Atty. Balagtas:
Already answered, Your Honor.
Court:
Q In this information it alleges here that the
accused knowingly the mental condition of the
complainant did then and there willfully and
feloniously by means of threats or intimidation
and with lewd designs have carnal knowledge
with the said complainant against her will and
without consent, what can you say about it?
A Because I was crying, sir. My tears rolled
down my cheeks.
Q You said that your private part was painful,
can you tell the Honorable Court.
Court:
Q Are you ashame[d] to tell everything?
Because of the number of men inside the
Courtroom?
A Yes, Your Honor.
Q Will you be able to tell us more details if we
exclude the audience?
A Yes, Your Honor.
(Audience is ordered to move outside.)

A Yes, Your Honor, he threatened me. Atty. Bernabe:

Atty. Bernabe: Q Your answer to the last question, what did

Ruperto Ramos do to you?
Q How did he threaten you?
A He inserted his penis to my private part, sir,
A He was (witness demonstrating clenching ang titi niya ipinasok sa pepe ko.
her teeth).
Q Madam Witness how many times did your
Court: uncle, you said he inserted his penis inside
your private part?
Q Did he say anything when he clenched his
teeth? A Often, sir.12cräläwvirtualibräry

A Yes, Your Honor. Jocelyns testimony, standing alone, is

conclusive proof of the guilt of accused-
Q What did he say? appellant for the crime of rape. Nonetheless, as
found by the trial court, Joel and Mary Grace
A Not to tell anybody, Your Honor. substantially corroborated Jocelyns testimony
on its material points. Mary Grace testified
Atty. Bernabe: seeing accused-appellant mashing the breast
of Jocelyn and sucking her nipples:
Q What did you feel when the accused place
on top of you? Q As you and Joel were playing then, did you
observe any unusual incident?
A I was hurt, sir.
A Yes, sir.
Q Why?
Q Please tell the Court what was that?
A It was painful, sir.
A We went inside the room of the house of
Court: Ruping, the room owned by Ruping and while
we were viewing TV, we saw Ruping inserting
Q What part of your body? his hands to the private part of my sister. He is
inserting his hands inside the party (sic) of
A (Witness pointing to her private part.) Josylyn (sic).
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Q And after seeing that, what happened next?
A We went outside and we reported the
incident to the mother of Joel.
Q Madam witness, your playmate Joel testified
that you and him went by the window and by
stepping on your shoulder that he saw Ruping
doing something to your sister, is it not a fact
that Joel stepped on your shoulder on that
particular day?
A Yes, sir.
Q After Joel had stepped on your shoulder you
also testified that you stepped on his shoulder
and you were the one saw something going on
inside the room. What is that something that
you have seen?
A There was sir, he mashed her brest (sic) and
he sucked her nipples.
Q Aside from that, what else?
A While my sister is lying down, the accused is
inserting his finger to the private part of my
sister. (referring to Josylyn)
Q And what else transpired aside from those?
A That is all, sir.13cräläwvirtualibräry
Joel testified seeing accused-appellant and
Jocelyn lying in bed naked, accused-appellant
on top of her and inserting his penis into her
vagina:
Atty. Bernabe:
Mister witness, sometime in December, 1997,
did you have occasion to see accused Ruperto
Ramos?
A. Yes, sir.
Q. Where did you see him?
A. In the room, sir.
Q. Who was with him in the room?
A. Jocelyn, sir.
Q. Who is Jocelyn?
A. Our neighbor, sir.
Q. And you made mention that you saw
Jocelyn and Ruperto Ramos inside the room.
Who is the owner of that house if you know?
A. Rupin, sir.
Q. When you made mention of Ruping, you are
referring to the accused Ruperto Ramos?
A. Yes, sir.
Q. When you said you saw them, what were
they doing?
A. Ruperto was lying on top of Jocelyn, sir.
Q. How did you come to know about that
matter?
A. We went to the back window and we used
an object to step on to see them, sir.
Q. You made mention of Grace. Who is Grace?
A. My playmate, sir.
Q. How is she related to Jocelyn?
A. They are sisters, sir.
Q. Please tell the Honorable Court what exactly
did you see when you said Ruperto Ramos
was on top of Jocelyn?
A. Binuburat ang titi.
Q. And were they wearing anything?
A. None, sir.
Court:
Who in particular had no clothing?
A. Both of them, sir.
Q. And for how long did you see Ruperto
Ramos on top of Jocelyn?
A. It was long but I could not estimate, sir.
Atty. Bernabe:
Now, when Ruperto Ramos was on top of
Jocelyn, what specifically was Ruperto Ramos
doing?
Atty. Balagtas:
Already answered.
Atty. Bernabe:
How about Jocelyn, what was she doing at that
time?
 HUMAN RIGHTS PRELIMFULLTEXT CASES
A. Jocelyn was lying front (nakadapa), sir.
Q. Aside from the fact that you claim that
Ruperto . . . . (interrupted)
Court:
Just a minute. You just stated that Jocelyn was
lying front and Ruperto Ramos was lying on top
of her. Was Ruperto Ramos lying front on top
of Jocelyn?
A. He was lying on top of the back of Jocelyn,
sir.
Atty. Bernabe:
Aside from that, you claim that Ruperto was
binuburat ang titi. Are there other acts which
you have seen during that time?
A. The eggplant was inserted inside the private
part of Jocelyn, sir.
Q. By whom?
A. Ruping, sir.14cräläwvirtualibräry
Dr. Aves findings based on his medical
examination of Jocelyn that her hymen had
multiple healed lacerations at 9 and 11 oclock
positions further buttressed Jocelyns testimony
that appellant had carnal knowledge of her.
Laceration of the hymen, whether fresh or
healed, is the best physical evidence of
defloration.15cräläwvirtualibräry
Appellants imputation of ill motive on
Fortunata, Jocelyns mother, was an act of utter
desperation. His claims that Fortunata accused
him of raping her daughter only out of envy
because his inheritance was still intact while
Fortunatas had already been depleted, and
that he rebuffed Fortunata when she borrowed
P500.00 or P300.00 from him and when he
removed the illegal electrical connection
installed in the house of Fortunata, are
preposterous and outrageous. In the first place,
it is highly inconceivable that Jocelyn, a nave
girl, would concoct a tale of defloration, allow
the examination of her private parts and
undergo the expense, tribulation and
inconvenience, not to mention the trauma of a
public trial, unless she was in fact raped by
accused-appellant.16 Accused-appellant failed
to prove his assertion and relied only on his
own self-serving testimony. Moreover, mothers
are so protective of their children that they
would give up their lives and fortune to protect
their children from any threat or peril to their
lives or limb and shield them from
embarassment, ridicule and any taint on their
reputation. It is unthinkable that Fortunata will
use Jocelyn as an instrument of malice, even
for the purpose of avenging a personal slight,
especially if it will subject Jocelyn to the
embarrassment, trauma and stigma attendant
to a rape trial unless accused-appellant indeed
raped Jocelyn.17 It must be pointed out that
Fortunata first sought the advice of Rafael
Ramos, the older brother of Efren and
accused-appellant, before she assisted the
private complainant in filing a complaint for
rape against accused-appellant.
Ranged against the overwhelming evidence of
the prosecution, accused-appellants curt denial
of the charge against him must necessarily fail.
Case law has it that denial of the crime
charged is but self-serving negative evidence
which cannot be accorded greater evidentiary
weight than the declaration of credible
witnesses who testify on affirmative
18
matters.  It bears stressing that accused-
appellants denial of the charge is corroborated
only by his close kins, his niece and brother-in-
law.
In fine, we find that the trial court did not err in
finding accused-appellant guilty beyond
reasonable doubt of raping Jocelyn.
Accused-appellant contends that the trial court
committed an error in imposing the penalty of
death on him on its finding that private
complainant was a minor at the time of the
commission of the crime and that she was a
relative of accused-appellant by consanguinity
within the third civil degree. Accused-appellant
contends that the prosecution failed to adduce
conclusive evidence independent of the
testimony of private complainant to prove the
latters minority. Neither did the prosecution
allegedly prove that private complainant was a
mental retardate. The Solicitor General on the
other hand contends that the testimonies of
private complainant and her mother constitute
proof of minority of Jocelyn.
Articles 266-A and 266-B of the Revised Penal
Code, as amended, provide in part that:
Article 266-A. Rape; When and How
Committed. Rape is committed:
1) By a man who have carnal knowledge of a
woman under any of the following
circumstances:
a) Through force, threat or intimidation;
 HUMAN RIGHTS PRELIMFULLTEXT CASES
b) When the offended party is deprived of
reason or otherwise consciousness;
c) By means of fraudulent machination or grave
abuse of authority; and
d) When the offended party is under twelve
(12) years of age or is demented, even though
none of the circumstances mentioned above be
present.
xxx
Article 266-B. Penalties. -
xxx
The death penalty shall also be imposed if the
crime of rape is committed with any of the
following aggravating/qualifying circumstances:
1) When the victim is under eighteen (18) years
of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common law spouse of the parent of the victim;
xxx
10) When the offender knew of the mental
disability, emotional disorder and/or physical
handicap of the offended party at the time of
the commission of the
19
crime. cräläwvirtualibräry
In the appeal at bar, the information alleged
two sets of special qualifying circumstances
attendant to the commission of the crime of
rape, namely, (a) the minority of private
complainant and her relationship to accused-
appellant; (b) her mental retardation and
knowledge thereof by accused-appellant. Proof
of only one of these special qualifying
circumstances is sufficient to justify the
imposition of the supreme penalty on death of
accused-appellant.
In the prosecution of criminal cases, especially
those involving the extreme penalty of death,
nothing but proof beyond reasonable doubt of
every fact necessary to constitute the crime
with which an accused is charged must be
established. Qualifying circumstances or
special qualifying circumstances must be
proved with equal certainty and clearness as
the crime itself, otherwise, there can be no
conviction of the crime in its qualified
form.20cräläwvirtualibräry
As a special qualifying circumstance of the
crime of rape, the concurrence of the victims
minority and her relationship to the accused
must be both alleged and proven beyond
reasonable doubt. To prove the minority of
Jocelyn, the prosecution was burdened to
adduce in evidence her birth certificate as it is
the best evidence to prove her age at the time
of the commission of the crime. Substitutionary
evidence, absent proof of loss or destruction of
the original of her birth certificate or the
unavailability thereof without fault of the
prosecution, including the testimony of Jocelyn
and of her mother, will not suffice. Neither can
the relationship of the accused to the victim be
established by mere testimony, not even if the
same was admitted by the accused. In People
vs. Tabanggay,[21] we categorically declared:
x x x Jurisprudence dictates that when the law
specifies certain circumstances that will qualify
an offense and thus attach to it a greater
degree of penalty, such circumstances must be
both alleged and proven in order to justify the
imposition of the graver penalty. Recent rulings
of the Court relative to the rape of minors
invariably state that in order to justify the
imposition of death, there must be independent
evidence proving the age of the victim, other
than the testimonies of prosecution witnesses
and the absence of denial of the accused. A
duly certified certificate live birth accurately
showing the complainants age, or some other
official document or record such as a school
record, has been recognized as competent
evidence.
In the instant case, we find insufficient the bare
testimony of private complainants and their
mother as to their ages as well as their kinship
to the appellant. x x x [We] cannot agree with
the solicitor general that appellants admission
of his relationship with his victims would
suffice. Elementary is the doctrine that the
prosecution bears the burden of proving all the
elements of a crime, including the qualifying
circumstances. In sum, the death penalty
cannot be imposed.
In this case, the prosecution failed to adduce in
evidence the original of the certificate of birth of
Jocelyn. There is no evidence that said
certificate of birth was lost or destroyed or was
unavailable without the fault of the prosecution.
Hence, substitutionary evidence was
inadmissible. The testimony of Jocelyn as to
her age, even if corroborated by her mother, is
not sufficient proof of minority.
The prosecution adduced testimonial evidence
inclusive of the admission of accused-appellant
that he was the uncle of Jocelyn. However,
under the Information, accused-appellant was
 HUMAN RIGHTS PRELIMFULLTEXT CASES
merely declared to be the uncle of Jocelyn. We
have held that if the offender is merely a
relation not a parent, ascendant, step-parent,
or guardian or common-law spouse of the
mother of the victim, the information must
allege that he is a relative by consanguinity or
affinity (as the case may be) within the third
civil degree. It is not enough for the information
to merely allege that accused-appellant is the
uncle of private complainant. Even if the
prosecution proved that accused-appellant was
in fact the uncle of Jocelyn, the death penalty
cannot be meted on accused-appellant on
account of said relationship. Consequently,
accused-appellant can only be held liable for
simple rape even if it was proven during the
trial that he was the uncle of the victim and
thus a relative by affinity of the victim within the
third civil degree.22cräläwvirtualibräry
On the second set of special qualifying
circumstances, the prosecution was burdened
to prove that (a) Jocelyn was a mental
retardate and that (b) accused-appellant knew
her mental condition. Knowledge by accused-
appellant of the mental condition of Jocelyn
may be proved by direct and/or circumstantial
evidence. In this case, the prosecution
adduced sufficient proof that Jocelyn was a
mental retardate. However, the prosecution
failed to adduce incontrovertible evidence to
prove that accused-appellant knew of the
mental retardation of Jocelyn.
The barefaced facts that private complainant
was the niece of accused-appellant and that
they were neighbors before and at the time of
the commission of the crime do not constitute
conclusive proof that accused-appellant had
knowledge of the mental retardation of private
complainant absent evidence of external
manifestations of her mental condition. The
penalty of death is so severe that nothing but
proof beyond reasonable doubt is required
before the said penalty can be imposed. In sum
then, accused-appellant is guilty of simple rape
defined in Article 266-A of the Revised Penal
Code as amended by Republic Act 7659 and
should be meted the penalty of reclusion
perpetua. In light of the reduction of the penalty
imposed upon accused-appellant, the award of
civil indemnity (erroneously designated as
moral damages by the trial court) must likewise
be reduced from P75,000.00 to P50,000.00.
Civil indemnity in the amount of P75,000.00 is
awarded only where the crime of rape was
effectively qualified by any of the
circumstances under which the death penalty is
authorized by the present law.23 In addition,
accused-appellant is also liable for moral
damages in the amount of P50,000.00. In rape
cases, the victim is assumed to have suffered
moral injuries, hence, entitling her to an award
of moral damages even without proof
thereof.24cräläwvirtualibräry
IN LIGHT OF ALL THE FOREGIONG, the
Decision dated November 19, 1999 of the
Regional Trial Court, Branch 21 of Malolos,
Bulacan in Criminal Case No. 659-M-98
is AFFIRMED with MODIFICATION. Accused-
appellant is hereby found guilty beyond
reasonable doubt of simple rape under Article
266-A of the Revised Penal Code and is
hereby meted the penalty of reclusion
perpetua. He is ordered to pay the victim,
Jocelyn Ramos, the amount of P50,000.00 as
civil indemnity and the amount of P50,000.00
as moral damages.
SO ORDERED.
CHAVEZ VS CA
G.R. No. L-29169           August 19, 1968
ROGER CHAVEZ, petitioner,
vs.
THE HONORABLE COURT OF APPEALS,
THE PEOPLE OF THE PHILIPPINES and
THE WARDEN OF THE CITY JAIL OF
MANILA, respondents.
Estanislao E. Fernandez and Fausto Arce for
petitioner.
Office of the Solicitor General for respondents.
SANCHEZ, J.:
The thrust of petitioner's case presented in his
original and supplementary petitions invoking
jurisdiction of this Court is that he is entitled, on
habeas corpus, to be freed from imprisonment
upon the ground that in the trial which resulted
in his conviction1 he was denied his
constitutional right not to be compelled to
testify against himself. There is his prayer, too,
that, should he fail in this, he be granted the
alternative remedies of certiorari to strike down
the two resolutions of the Court of Appeals
dismissing his appeal for failure to file brief,
and of mandamus to direct the said court to
forward his appeal to this Court for the reason
that he was raising purely questions of law.
The indictment in the court below — the third
amended information — upon which the
judgment of conviction herein challenged was
rendered, was for qualified theft of a motor
vehicle, one (1) Thunderbird car, Motor No.
H9YH-143003, with Plate No. H-16648 Pasay
 HUMAN RIGHTS PRELIMFULLTEXT CASES
City '62 together with its accessories worth
P22,200.00. Accused were the following:
Petitioner herein, Roger Chavez, Ricardo
Sumilang alias "Romeo Vasquez", Edgardo P.
Pascual alias "Ging" Pascual, Pedro Rebullo
alias "Pita", Luis Asistio alias "Baby" Asistio,
Lorenzo Meneses alias "Lory" Meneses, Peter
Doe, Charlie Doe and Paul Doe.2
Averred in the aforesaid information was that
on or about the 14th day of November, 1962, in
Quezon City, the accused conspired, with
intent of gain, abuse of confidence and without
the consent of the owner thereof, Dy Sun Hiok
y Lim, in asporting the motor vehicle above-
described.
Upon arraignment, all the accused, except the
three Does who have not been identified nor
apprehended, pleaded not guilty.1äwphï1.ñët
On July 23, 1963, trial commenced before the
judge presiding Branch IX of the Court of First
Instance of Rizal in Quezon City.
The trial opened with the following dialogue,
which for the great bearing it has on this case,
is here reproduced:.
COURT:
The parties may proceed.
FISCAL GRECIA:
Our first witness is Roger Chavez [one
of the accused].
ATTY. CARBON [Counsel for petitioner
Chavez]:
I am quite taken by surprise, as counsel
for the accused Roger Chavez, with this
move of the Fiscal in presenting him as
his witness. I object.
COURT:
On what ground, counsel? .
ATTY. CARBON:
On the ground that I have to confer with
my client. It is really surprising that at
this stage, without my being notified by
the Fiscal, my client is being presented
as witness for the prosecution. I want to
say in passing that it is only at this very
moment that I come to know about this
strategy of the prosecution.
COURT (To the Fiscal):
You are not withdrawing the information
against the accused Roger Chavez by
making [him a] state witness?.
FISCAL GRECIA:
I am not making him as state witness,
Your Honor.
I am only presenting him as an ordinary
witness.
ATTY. CARBON:
As a matter of right, because it will
incriminate my client, I object.
COURT:
The Court will give counsel for Roger
Chavez fifteen minutes within which to
confer and explain to his client about the
giving of his testimony.
xxx     xxx     xxx
COURT: [after the recess]
Are the parties ready? .
FISCAL:
We are ready to call on our first witness,
Roger Chavez.
ATTY. CARBON:
As per understanding, the proceeding
was suspended in order to enable me to
confer with my client.
I conferred with my client and he
assured me that he will not testify for the
prosecution this morning after I have
explained to him the consequences of
what will transpire.
COURT:
What he will testify to does not
necessarily incriminate him, counsel.
And there is the right of the prosecution
to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is
incriminating then that is the time for
counsel to interpose his objection and
the court will sustain him if and when the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
court feels that the answer of this
witness to the question would
incriminate him.
Counsel has all the assurance that the
court will not require the witness to
answer questions which would
incriminate him.
But surely, counsel could not object to
have the accused called on the
witnessstand.
ATTY. CARBON:
I submit.
xxx     xxx     xxx
ATTY. CRUZ [Counsel for defendants
Pascual and Meneses]: .
MAY IT PLEASE THE COURT:
This incident of the accused Roger
Chavez being called to testify for the
prosecution is something so sudden that
has come to the knowledge of this
counsel.
This representation has been apprised
of the witnesses embraced in the
information.
For which reason I pray this court that I
be given at least some days to meet
whatever testimony this witness will
bring about. I therefore move for
postponement of today's hearing.
COURT:
The court will give counsel time within
which to prepare his cross-examination
of this witness.
ATTY. CRUZ:
I labored under the impression that the
witnesses for the prosecution in this
criminal case are those only listed in the
information.
I did not know until this morning that one
of the accused will testify as witness for
the prosecution.
COURT:
That's the reason why the court will go
along with counsels for the accused and
will give them time within which to
prepare for their cross-examination of
this witness.
The court will not defer the taking of the
direct examination of the witness.
Call the witness to the witness stand.
EVIDENCE FOR THE PROSECUTION
ROGER CHAVEZ, 31 years old, single,
buy and sell merchant, presently
detained at the Manila Police
Department headquarters, after being
duly sworn according to law, declared as
follows:
ATTY. IBASCO [Counsel for defendant
Luis Asistio]:
WITH THE LEAVE OF THE COURT:
This witness, Roger Chavez is one of
the accused in this case No. Q-5311.
The information alleges conspiracy.
Under Rule 123, Section 12, it states:
'The act or declaration of a conspirator
relating to the conspiracy and during its
existence, may be given in evidence
against the co-conspirator after the
conspiracy is shown by evidence other
than such act or declaration.'
COURT:
That is premature, counsel. Neither the
court nor counsels for the accused know
what the prosecution
events to establish by calling this
witness to the witness stand.
ATTY. IBASCO:
I submit.
COURT: The Fiscal may proceed.3
And so did the trial proceed. It began with the
"direct examination" of Roger Chavez by
"Fiscal Grecia".
Came the judgment of February 1, 1965. The
version of the prosecution as found by the
court below may be briefly narrated as follows:
A few days before November 12, 1962, Roger
Chavez saw Johnson Lee, a Chinese, driving a
Thunderbird car. With Ricardo Sumilang
 HUMAN RIGHTS PRELIMFULLTEXT CASES
(movie actor Romeo Vasquez) in mind, whom
he knew was in the market for such a car,
Chavez asked Lee whether his car was for
sale. Lee answered affirmatively and left his
address with Chavez. Then, on November 12,
Chavez met Sumilang at a barbershop
informed him about the Thunderbird. But
Sumilang said that he had changed his mind
about buying a new car. Instead, he told
Chavez that he wanted to mortgage his Buick
car for P10,000.00 to cover an indebtedness in
Pasay City. Upon the suggestion of Chavez,
they went to see Luis Asistio, who he knew
was lending money on car mortgages and who,
on one occasion, already lent Romeo Vasquez
P3,000.00 on the same Buick car. Asistio
however told the two that he had a better idea
on how to raise the money. His plan was to
capitalize on Romeo Vasquez' reputation as a
wealthy movie star, introduce him as a buyer to
someone who was selling a car and, after the
deed of sale is signed, by trickery to run away
with the car. Asistio would then register it, sell it
to a third person for a profit. Chavez known to
be a car agent was included in the plan. He
furnished the name of Johnson Lee who was
selling his Thunderbird. 1äwphï1.ñët
In the morning of November 14, Chavez
telephoned Johnson Lee and arranged for an
appointment. Sometime in the afternoon.
Chavez and Sumilang met Lee in his
Thunderbird on Highway 54. Sumilang was
introduced as the interested buyer. Sumilang's
driver inspected the car, took the wheel for a
while. After Sumilang and Lee agreed on the
purchase price (P21.000.00), they went to
Binondo to Johnson Lee's cousin, Dy Sun
Hiok, in whose name the car was registered.
Thereafter, they went to see a lawyer notary
public in Quezon City, known to Chavez for the
drafting of the deed of sale. After the deed of
sale was drawn up, it was signed by Sumilang
as the vendee, Dy Sun Hiok the vendor, and
Sumilang's driver and Johnson Lee the
witnesses thereto.
As payment was to be made at Eugene's
restaurant in Quezon City, all of them then
drove in the Thunderbird car to that place. The
deed of sale and other papers remained in the
pockets of Johnson Lee.
At Eugene's, a man approached Sumilang with
a note which stated that the money was ready
at the Dalisay Theater. Sumilang then wrote on
the same note that the money should be
brought to the restaurant. At the same time he
requested Lee to exhibit the deed of sale of the
car to the note bearer.4
Then, the two Chinese were left alone in the
restaurant. For Sumilang, who had left the
table to pose for pictures with some fans and
come back, again left never to return. So did
Chavez, who disappeared after he left on the
pretext of buying cigarettes. The two Chinese
could not locate Sumilang and Chavez. They
went out to the place where the Thunderbird
was parked, found that it was gone. They then
immediately reported its loss to the police.
Much later, the NBI recovered the already
repainted car and impounded it.
Right after the meeting at Eugene's, Chavez,
Sumilang and Asistio converged that same day
at Barrio Fiesta, a restaurant at Highway 54
near the Balintawak monument in Caloocan.
There, Asistio handed to Sumilang P1,000.00
cash and a golf set worth P800.00 as the
latter's share in the transaction. On the 14th of
November, the registration of the car was
transferred in the name of Sumilang in Cavite
City, and three days later, in the name of
Asistio in Caloocan.
From the court's decision, Ricardo Sumilang's
version, corroborated in part by Asistio, may be
condensed as follows:
In the last week of September, 1962, Sumilang
saw Roger Chavez at a gas station. The latter
informed him that there was a Thunderbird
from Clark Field for sale for a price between
P20,000.00 and P22,000.00. Chavez said that
it could be held for him with a down payment of
P10,000.00.
To raise this sum, Sumilang and Chavez, on
October 1, went to the house of a certain Nena
Hernaez de los Reyes who wrote out a check
for P5,000.00 as a loan to Sumilang. That
check was exhibited in court. Sumilang and
Chavez then went to Pasay City to see a
certain Mario Baltazar, an agent of the Pasay
City Mayor, and Narsing Cailles, Chief of the
Fire Department. Sumilang asked the two for a
P10,000-loan backed up by the P5,000.00-
check aforesaid on condition that it should not
be cashed immediately as there were not
enough funds therefor. Baltazar and Cailles
agreed to give the money the nextday as long
as the check would be left with them and
Sumilang would sign a promissory note for
P10,000.00. Baltazar later informed Sumilang
that Chavez picked up the money the next day.
Four or five days afterwards, Chavez returned
P4,000.00 to Sumilang because P6,000.00
was enough for the deposit. And so, Sumilang
gave back the P4,000.00 to Baltazar.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
About the end of October or at the beginning of
November, Chavez asked Sumilang for
another P3,000.00. Sumilang sent Chavez to
Baltazar and Cailles, with a note requesting
that they accommodate him once more. He
also sent a check, again without funds.
Baltazar gave the money after verifying the
authenticity of the note.
On November 14, Chavez appeared at
Sumilang's house with the news that the car
was ready if Sumilang was ready with the rest
of the money. So Sumilang got P9,000.00 from
his mother and another P4,000.00 from his
aparador. He immediately gave P6,000.00 to
Chavez, intending to pay out the balance upon
the car's delivery. It was then that Chavez told
Sumilang that the car was already bought by a
Chinese who would be the vendor.
The purchase price finally agreed upon
between Sumilang and Johnson Lee was
P21,000.00, plus P500.00 agents commission
at the expense of the buyer. Sumilang told Lee
that he already paid part of the price to
Chavez.
At Eugene's, Chavez asked Sumilang for the
balance. Sumilang accommodated. There,
Sumilang, also saw a friend, "Ging" Pascual. In
the course of their conversation at the bar,
Sumilang mentioned the proposed transaction
thru Chavez. Pascual warned that Chavez was
a "smart" agent and advised that Sumilang
should have a receipt for his money. A certain
Bimbo, a friend of Pascual, offered to make out
a receipt for Chavez to sign.
After Sumilang returned from posing for some
photographs with some of his fans, Bimbo
showed him the receipt already signed by
Chavez. Sumilang requested Pascual and
Bimbo to sign the receipt as witnesses. And
they did. This receipt was offered as an exhibit
by the prosecution and by Sumilang.
When Sumilang was ready to leave Eugene's,
Johnson Lee turned over to him the deed of
sale, the registration papers and the keys to
the car. After shaking hands with Lee,
Sumilang drove away in the car with his driver
at the wheel.
Two or three days afterwards, Sumilang
dropped by the Barrio Fiesta on his way to a
film shooting at Bulacan. He saw Asistio with
many companions. Asistio liked his
Thunderbird parked outside. Asistio offered to
buy it from him for P22,500.00. As the offer
was good, and knowing Asistio's and his
friends' reputation for always getting what they
wanted, Sumilang consented to the sale.
Asistio tendered a down payment of P1,000.00;
the balance he promised to pay the next day
after negotiating with some financing company.
Before said balance could be paid, the car was
impounded.
The trial court gave evidence to Sumilang's
averment, strengthened by Baltazar's and
Cailles' corroborations, that he paid good
money for the car. Sumilang was thus cleared.
So was Asistio whom the trial court believed to
be a mere buyer of the car. And so, the
prosecution's theory of conspiracy was
discounted.
As to the other accused, the court found no
case against Pedro Rebullo alias "Pita" and
Lorenzo Meneses alias "Lory". The accused
"Ging" Pascual was also acquitted for in the
first place he was not identified by Johnson Lee
in court.
As to Roger Chavez, however, the court had
this to say: "Roger Chavez does not offer any
defense. As a matter of fact, his testimony as
witness for the prosecution establishes his guilt
beyond reasonable doubt."5 The trial court
branded him "a self-confessed culprit".6 The
court further continued:
It is not improbable that true to the
saying that misery loves company Roger
Chavez tried to drag his co-accused
down with him by coloring his story with
fabrications which he expected would
easily stick together what with the
newspaper notoriety of one and the
sensationalism caused by the other. But
Roger Chavez' accusations of Asistio's
participation is utterly uncorroborated.
And coming, as it does, from a man who
has had at least two convictions for acts
not very different from those charged in
this information, the Court would be too
gullible if it were to give full credence to
his words even if they concerned a man
no less notorious than himself.7
The trial court then came to the conclusion that
if Johnson Lee was not paid for his car, he had
no one but Roger Chavez to blame.
The sum of all these is that the trial court freed
all the accused except Roger Chavez who was
found guilty beyond reasonable doubt of the
crime of qualified theft. He was accordingly
sentenced to suffer an indeterminate penalty of
not less than ten (10) years, one (1) day, as
minimum and not more than fourteen (14)
years, eight (8) months and one (1) day as
 HUMAN RIGHTS PRELIMFULLTEXT CASES
maximum, to indemnify Dy Sun Hiok and/or
Johnson Lee in the sum of P21,000.00 without
subsidiary imprisonment in case of insolvency,
to undergo the accessory penalties prescribed
by law, and to pay the costs. The Thunderbird
car then in the custody of the NBI was ordered
to be turned over to Ricardo Sumilang, who
was directed to return to Asistio the sum of
P1,000.00 unless the latter chose to pay
P21,500.00, representing the balance of the
contract price for the car.
The foregoing sentence was promulgated on
March 8, 1965. Roger Chavez appealed to the
Court of Appeals.
On April 18, 1968, the Court of Appeals
required Atty. Natividad Marquez, counsel for
Roger Chavez, to show cause within ten days
from notice why Chavez' appeal should not be
considered abandoned and dismissed. Reason
for this is that said lawyer received notice to file
brief on December 28, 1967 and the period for
the filing thereof lapsed on January 27, 1968
without any brief having been filed.
On May 13, 1968, Atty. Marquez registered a
detailed written explanation. She also stated
that if she were allowed to file appellant's
brief she would go along with the factual
findings of the court below but will show
however that its conclusion is erroneous.8
On May 14, 1968, the Court of Appeals,
despite the foregoing explanation, resolved to
dismiss the appeal. A move to reconsider was
unavailing. For, on June 21, 1968, the Court of
Appeals, through a per curiam resolution,
disposed to maintain its May 14 resolution
dismissing the appeal, directed the City
Warden of Manila where Chavez is confined by
virtue of the warrant of arrest issued by the
Court of Appeals, to turn him over to
Muntinlupa Bilibid Prisons pending execution of
the judgment below, and ordered remand of
the case to the Quezon City court for execution
of judgment.
It was at this stage that the present
proceedings were commenced in this Court.
Upon the petitions, the return, and the reply,
and after hearing on oral arguments, we now
come to grips with the main problem
presented.
We concentrate attention on that phase of the
issues which relates petitioner's assertion that
he was compelled to testify against himself. For
indeed if this one question is resolved in the
affirmative, we need not reach the others; in
which case, these should not be pursued here.
1. Petitioner's plea on this score rests upon his
averment, with proof, of violation of his right —
constitutionally entrenched — against self-
incrimination. He asks that the hand of this
Court be made to bear down upon his
conviction; that he be relieved of the effects
thereof. He asks us to consider the
constitutional injunction that "No person shall
be compelled to be a witness against
himself,"9 fully echoed in Section 1, Rule 115,
Rules of Court where, in all criminal
prosecutions, the defendant shall be entitled:
"(e) To be exempt from being a witness against
himself." .
It has been said that forcing a man to be a
witness against himself is at war with "the
fundamentals of a republican
government"; 10 that [i]t may suit the purposes
of despotic power but it can not abide the pure
atmosphere of political liberty and personal
freedom."11 Mr. Justice Abad Santos recounts
the historical background of this constitutional
inhibition, thus: " "The maxim Nemo tenetur
seipsum accusare had its origin in a protest
against the inquisitorial and manifestly unjust
methods of interrogating accused persons,
which has long obtained in the continental
system, and, until the expulsion of the Stuarts
from the British throne in 1688, and the
erection of additional barriers for the protection
of the people against the exercise of arbitrary
power, was not uncommon even in England.
While the admissions of confessions of the
prisoner, when voluntarily and freely made,
have always ranked high in the scale of
incriminating evidence, if an accused person
be asked to explain his apparent connection
with a crime under investigation, the ease with
which the questions put to him may assume an
inquisitorial character, the temptation to press,
the witness unduly, to browbeat him if he be
timid or reluctant, to push him into a corner,
and to entrap him into fatal contradictions,
which is so painfully evident in many of the
earlier state trials, notably in those of Sir
Nicholas Throckmorton, and Udal, the Puritan
minister, made the system so odious as to give
rise to a demand for its total abolition. The
change in the English criminal procedure in
that particular seems to be founded upon no
statute and no judicial opinion, but upon a
general and silent acquiescence of the courts
in a popular demand. But, however adopted, it
has become firmly embedded in English, as
well as in American jurisprudence. So deeply
did the iniquities of the ancient system impress
themselves upon the minds of the American
 HUMAN RIGHTS PRELIMFULLTEXT CASES
colonists that the states, with one accord,
made a denial of the right to question an
accused person a part of their fundamental
law, so that a maxim which in England was a
mere rule of evidence, became clothed in this
country with the impregnability of a
constitutional enactment." (Brown vs. Walker,
161 U.S., 591, 597; 40 Law. ed., 819,
821)." 12 Mr. Justice Malcolm, in expressive
language, tells us that this maxim was
recognized in England in the early days "in a
revolt against the thumbscrew and the
rack." 13 An old Philippine case [1904] 14 speaks
of this constitutional injunction as "older than
the Government of the United States"; as
having "its origin in a protest against the
inquisitorial methods of interrogating the
accused person"; and as having been adopted
in the Philippines "to wipe out such practices
as formerly prevailed in these Islands of
requiring accused persons to submit to judicial
examinations, and to give testimony regarding
the offenses with which they were charged."
So it is then that this right is "not merely a
formal technical rule the enforcement of which
is left to the discretion of the court"; it is
mandatory; it secures to a defendant a
valuable and substantive right; 15 it is
fundamental to our scheme of justice. Just a
few months ago, the Supreme Court of the
United States (January 29, 1968), speaking
thru Mr. Justice Harlan warned that "[t]he
constitutional privilege was intended to shield
the guilty and imprudent as well as the
innocent and foresighted." 16
It is in this context that we say that the
constitutional guarantee may not be treated
with unconcern. To repeat, it is mandatory; it
secures to every defendant a valuable and
substantive right. Tañada and Fernando
(Constitution of the Philippines, 4th ed., vol. I,
pp. 583-584) take note of U.S. vs. Navarro,
supra, which reaffirms the rule that the
constitutional proscription was established on
broad grounds of public policy and humanity; of
policy because it would place the witness
against the strongest temptation to commit
perjury, and of humanity because it would be to
extort a confession of truth by a kind of duress
every species and degree of which the law
abhors. 17
Therefore, the court may not extract from a
defendant's own lips and against his will an
admission of his guilt. Nor may a court as much
as resort to compulsory disclosure, directly or
indirectly, of facts usable against him as a
confession of the crime or the tendency of
which is to prove the commission of a crime.
Because, it is his right to forego testimony, to
remain silent, unless he chooses to take the
witness stand — with undiluted, unfettered
exercise of his own free, genuine will.
Compulsion as it is understood here does not
necessarily connote the use of violence; it may
be the product of unintentional statements.
Pressure which operates to overbear his will,
disable him from making a free and rational
choice, or impair his capacity for rational
judgment would in our opinion be sufficient. So
is moral coercion "tending to force testimony
from the unwilling lips of the defendant." 18
2. With the foregoing as guideposts, we now
turn to the facts. Petitioner is a defendant in a
criminal case. He was called by the
prosecution as the first witness in that case to
testify for the People during the first day of trial
thereof. Petitioner objected and invoked the
privilege of self-incrimination. This he
broadened by the clear cut statement that he
will not testify. But petitioner's protestations
were met with the judge's emphatic statement
that it "is the right of the prosecution to ask
anybody to act as witness on the witness
stand including the accused," and that defense
counsel "could not object to have the accused
called on the witness stand." The cumulative
impact of all these is that accused-petitioner
had to take the stand. He was thus
peremptorily asked to create evidence against
himself. The foregoing situation molds a solid
case for petitioner, backed by the Constitution,
the law, and jurisprudence.
Petitioner, as accused, occupies a different tier
of protection from an ordinary witness.
Whereas an ordinary witness may be
compelled to take the witness stand and claim
the privilege as each question requiring an
incriminating answer is shot at him, 19 and
accused may altogether refuse to take the
witness stand and refuse to answer any and all
questions. 20 For, in reality, the purpose of
calling an accused as a witness for the People
would be to incriminate him. 21 The rule
positively intends to avoid and prohibit the
certainly inhuman procedure of compelling a
person "to furnish the missing evidence
necessary for his conviction." 22 This rule may
apply even to a co-defendant in a joint trial.23
And the guide in the interpretation of the
constitutional precept that the accused shall
not be compelled to furnish evidence against
himself "is not the probability of the evidence
but it is the capability of abuse." 24 Thus it is,
that it was undoubtedly erroneous for the trial
judge to placate petitioner with these words:.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
What he will testify to does not
necessarily incriminate him, counsel.
And there is the right of the prosecution
to ask anybody to act as witness on the
witness-stand including the accused.
If there should be any question that is
incriminating then that is the time for
counsel to interpose his objection and
the court will sustain him if and when the
court feels that the answer of this
witness to the question would
incriminate him.
Counsel has all the assurance that the
court will not require the witness to
answer questions which would
incriminate him.
But surely, counsel could not object to
have the accused called on the witness
stand.
Paraphrasing Chief Justice Marshall in Aaron
Burr's Trial, Robertsons Rep. I, 208, 244,
quoted in VIII Wigmore, p. 355, 25 While a
defendant's knowledge of the facts remains
concealed within his bosom, he is safe; but
draw it from thence, and he is exposed" — to
conviction.
The judge's words heretofore quoted — "But
surely counsel could not object to have the
accused called on the witness stand" —
wielded authority. By those words, petitioner
was enveloped by a coercive force; they
deprived him of his will to resist; they
foreclosed choice; the realities of human nature
tell us that as he took his oath to tell the truth,
the whole truth and nothing but the truth, no
genuine consent underlay submission to take
the witness stand. Constitutionally sound
consent was absent.
3. Prejudice to the accused for having been
compelled over his objections to be a witness
for the People is at once apparent. The record
discloses that by leading questions Chavez,
the accused, was made to affirm his statement
given to the NBI agents on July 17, 1963 at
5:00 o'clock in the afternoon. 26 And this
statement detailed the plan and execution
thereof by Sumilang (Vasquez), Asistio and
himself to deprive the Chinese of his
Thunderbird car. And he himself proceeded to
narrate the same anew in open court. He
identified the Thunderbird car involved in the
case. 27
The decision convicting Roger Chavez was
clearly of the view that the case for the People
was built primarily around the admissions of
Chavez himself. The trial court described
Chavez as the "star witness for the
prosecution". Indeed, the damaging facts
forged in the decision were drawn directly from
the lips of Chavez as a prosecution witness
and of course Ricardo Sumilang for the
defense. There are the unequivocal statements
in the decision that "even accused Chavez"
identified "the very same Thunderbird that
Johnson Lee had offered for sale"; that Chavez
"testimony as witness for the prosecution
establishes his guilt beyond reasonable doubt
and that Chavez is "a self-confessed
culprit". 1äwphï1.ñët
4. With all these, we have no hesitancy in
saying that petitioner was forced to testify to
incriminate himself, in full breach of his
constitutional right to remain silent. It cannot be
said now that he has waived his right. He did
not volunteer to take the stand and in his own
defense; he did not offer himself as a witness;
on the contrary, he claimed the right upon
being called to testify. If petitioner nevertheless
answered the questions inspite of his fear of
being accused of perjury or being put under
contempt, this circumstance cannot be counted
against him. His testimony is not of his own
choice. To him it was a case of compelled
submission. He was a cowed participant in
proceedings before a judge who possessed the
power to put him under contempt had he
chosen to remain silent. Nor could he escape
testifying. The court made it abundantly clear
that his testimony at least on direct
examination would be taken right then and
thereon the first day of the trial.
It matters not that, after all efforts to stave off
petitioner's taking the stand became fruitless,
no objections to questions propounded to him
were made. Here involve is not a mere
question of self-incrimination. It is a
defendant's constitutional immunity from being
called to testify against himself. And the
objection made at the beginning is a continuing
one. 1äwphï1.ñët
There is therefore no waiver of the privilege.
"To be effective, a waiver must be certain
and unequivocal, and intelligently,
understandably, and willingly made; such
waiver following only where liberty of
choice has been fully accorded. After a claim a
witness cannot properly be held to have waived
his privilege on vague and uncertain
evidence." 28 The teaching in Johnson vs.
Zerbst  29 is this: "It has been pointed out that
 HUMAN RIGHTS PRELIMFULLTEXT CASES
"courts indulge every reasonable presumption
against waiver" of fundamental constitutional
rights and that we "do not presume
acquiescence in the loss of fundamental
rights." A waiver is ordinarily an intentional
relinquishment or abandonment of a known
right or privilege." Renuntiatio non praesumitur.
The foregoing guidelines, juxtaposed with the
circumstances of the case heretofore adverted
to, make waiver a shaky defense. It cannot
stand. If, by his own admission, defendant
proved his guilt, still, his original claim remains
valid. For the privilege, we say again, is a
rampart that gives protection - even to the
guilty.  30
5. The course which petitioner takes is
correct. Habeas corpus is a high prerogative
writ. 31 It is traditionally considered as an
exceptional remedy to release a person whose
liberty is illegally restrained such as when the
accused's constitutional rights are
disregarded. 32 Such defect results in the
absence or loss of jurisdiction 33 and therefore
invalidates the trial and the consequent
conviction of the accused whose fundamental
right was violated. 34 That void judgment of
conviction may be challenged by collateral
attack, which precisely is the function of
habeas corpus. 35 This writ may issue even if
another remedy which is less effective may be
availed of by the defendant. 36 Thus, failure by
the accused to perfect his appeal before the
Court of Appeals does not preclude a recourse
to the writ. 37 The writ may be granted upon a
judgment already final. 38 For, as explained
in Johnson vs. Zerbst, 39 the writ of habeas
corpus as an extraordinary remedy must
be liberally given effect 40 so as to protect well
a person whose liberty is at stake. The
propriety of the writ was given the nod in that
case, involving a violation of another
constitutional right, in this wise:
Since the Sixth Amendment
constitutionally entitles one charged with
crime to the assistance of Counsel,
compliance with this constitutional
mandate is an essential jurisdictional
prerequisite to a Federal Court's
authority. When this right is properly
waived, the assistance of Counsel is no
longer a necessary element of the
Court's jurisdiction to proceed to
conviction and sentence. If the accused,
however, is not represented by Counsel
and has not competently and
intelligently waived his constitutional
right, the Sixth Amendment stands as a
jurisdictional bar to a valid conviction
and sentence depriving him of his
liberty. A court's jurisdiction at the
beginning of trial may be lost "in the
course of the proceedings" due to failure
to complete the court — as the Sixth
Amendment requires — by providing
Counsel for an accused who is unable
to obtain Counsel, who has not
intelligently waived this constitutional
guaranty, and whose life or liberty is at
stake. If this requirement of the Sixth
Amendment is not complied with, the
court no longer has jurisdiction to
proceed. The judgment of conviction
pronounced by a court without
jurisdiction is void, and one imprisoned
thereunder may obtain release of
habeas corpus. 41
Under our own Rules of Court, to grant the
remedy to the accused Roger Chavez whose
case presents a clear picture of disregard of a
constitutional right is absolutely proper. Section
1 of Rule 102 extends the writ, unless
otherwise expressly provided by law, "to all
cases of illegal confinement or detention by
which any person is deprived of his liberty, or
by which the rightful custody of any person is
withheld from the person entitled thereto.
Just as we are about to write finis to our task,
we are prompted to restate that: "A void
judgment is in legal effect no judgment. By it no
rights are divested. From it no rights can be
obtained. Being worthless in itself, all
proceedings founded upon it are equally
worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing
out of it are void. The parties attempting to
enforce it may be responsible as
42
trespassers. ... " 
6. Respondents' return 43 shows that petitioner
is still serving under a final and valid judgment
of conviction for another offense. We should
guard against the improvident issuance of an
order discharging a petitioner from
confinement. The position we take here is that
petitioner herein is entitled to liberty thru
habeas corpus only with respect to Criminal
Case Q-5311 of the Court of First Instance of
Rizal, Quezon City Branch, under which he
was prosecuted and convicted.
Upon the view we take of this case, judgment
is hereby rendered directing the respondent
Warden of the City Jail of Manila or the Director
of Prisons or any other officer or person in
custody of petitioner Roger Chavez by reason
of the judgment of the Court of First Instance of
Rizal, Quezon City Branch, in Criminal Case Q-
 HUMAN RIGHTS PRELIMFULLTEXT CASES
5311, entitled "People of the Philippines,
plaintiff, vs. Ricardo Sumilang, et al., accused,"
to discharge said Roger Chavez from
custody, unless he is held, kept in custody or
detained for any cause or reason other than
the said judgment in said Criminal Case Q-
5311 of the Court of First Instance of Rizal,
Quezon City Branch, in which event the
discharge herein directed shall be effected
when such other cause or reason ceases to
exist.
No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon,
Makalintal, Zaldivar, Angeles and Fernando,
JJ., concur. Castro, J., concurs in a separate
opinion.
Separate Opinions
CASTRO, J., dissenting :
In 1901, early in the history of constitutional
government in this country, this Court reversed
the conviction of an accused who, having
pleaded "not guilty," was required by the judge
to testify and answer the complaint. The case
was that of United States v. Junio, reported in
the first volume of the Philippine Reports, on
page 50 thereof.
Resolution of the case did not require an
extended opinion (it consumed no more than a
page in the Reports). For indeed the facts fitted
exactly into the prohibition contained in The
President's Instruction to the (Second)
Philippine Commission1 "that no person shall ...
be compelled in any criminal case to be a
witness against himself.".
There was no need either for a dissertation on
the Rights of Man, though occasion for this was
not lacking as the predominant American
members of the Court were under a special
commission to prepare the Filipinos for self-
government. The privilege against self-
incrimination was fully understood by the
Filipinos, whose own history provided the
necessary backdrop for this privilege. 2
The Supreme Court simply said, "The judge
had no right to compel the accused to make
any statement whatever," and declared the
proceedings void.
Nor was there a similar judicial error likely to be
committed in the years to come, what with the
constant reminder of a Bill of Rights enshrined
in successive organic acts intended for the
Philippines.3 This is not to say that the
Philippine history of the privilege ended with
the Junio case. To be sure, violations of the
privilege took other, and perhaps subtle,
forms4 but not the form directly prohibited by
the privilege. Even in the recent case of Cabal
v. Kapunan5 it was assumed as a familiar
learning that the accused in a criminal case
cannot be required to give testimony and that if
his testimony is needed at all against his co-
accused, he must first be discharged.6 If Cabal,
the respondent in an administrative case, was
required by an investigating committee to
testify, it was because it was thought that
proceedings for forfeiture of illegally acquired
property under Republic Act 13797 were civil
and not criminal in nature. Thus Mr. Justice
(now Chief Justice) Concepcion could
confidently say:
At the outset, it is not disputed that the
accused in a criminal case may refuse
not only to answer incriminatory
questions but also to take the witness
stand. (3 Whartons Criminal Evidence,
pp. 1959-1960; 98 C.J.S., p. 264).
Hence, the issue before us boils down to
whether or not the proceedings before
the aforementioned Committee is civil or
criminal in character.
Today, perhaps because of long separation
from our past, we need what Holmes called
"education in the obvious, more than
investigation of the obscure."8 The past may
have receded so far into the distance that our
perspectives may have been altered and our
vision blurred.
When the court in the case at bar required the
petitioner to testify, it in effect undid the
libertarian gains made over half a century and
overturned the settled law. The past was
recreated with all its vividness and all its
horrors: John Lilburne in England in 1637,
refusing to testify before the Council of the Star
Chamber and subsequently condemned by it to
be whipped and pilloried for his "boldness in
refusing to take a legal oath;"9 the Filipino
priests Gomez, Burgos and Zamora in 1872
condemned by the Inquisition to die by their
own testimony. 10
It is for this reason that I deem this occasion
important for the expression of my views on the
larger question of constitutional dimension.
No doubt the constitutional provision that "No
person shall be compelled to be a witness
 HUMAN RIGHTS PRELIMFULLTEXT CASES
11
against himself"   may, on occasion, save a
guilty man from his just deserts, but it is aimed
against a more far reaching evil — recurrence
of the Inquisition and the Star Chamber, even if
not in their stark brutality. Prevention of the
greater evil was deemed of more importance
than occurrence of the lesser evil. 12 As Dean
Griswold put the matter with eloquence:.
[T]he privilege against self-incrimination
is one of the great landmarks in man's
struggle to make himself civilized ...
[W]e do not make even the most
hardened criminal sign his own death
warrant, or dig his own grave, or pull the
lever that springs the trap on which he
stands. We have through the course of
history developed considerable feeling
of the dignity and intrinsic importance of
the individual man. Even the evil man is
a human being. 13
The Government must thus establish guilt by
evidence independently and freely secured; it
can not by coercion prove a charge against an
accused out of his own mouth. 14
This is not what was done here. What was
done here was to force the petitioner to take
the witness stand and state his part in the
crime charged as "star witness for the
prosecution," to use the very words of the
decision, and, by means of his testimony,
prove his guilt. Thus, the trial court said in its
decision:
Roger Chavez does not offer any
defense. As a matter of fact, his
testimony as a witness for the
prosecution establishes his guilt beyond
reasonable doubt.
The petitioner has been variously described by
the trial court as "a car agent ... well versed in
this kind of chicanery" "a self-confessed
culprit," and "a man with at least two
convictions for acts not very different from
those charged in [the] information." But if he
has thus been described it was on the basis of
evidence wrung from his lips. If he was
ultimately found guilty of the charge against
him it was because of evidence which he was
forced to give. In truth he was made the "star
witness for the prosecution" against himself.
But neither torture nor an oath nor the threat of
punishment such as imprisonment for contempt
can be used to compel him to provide the
evidence to convict himself. No matter how evil
he is, he is still a human being.
The fact that the judgment of conviction
became final with the dismissal of the appeal to
the Court of Appeals for failure of the
petitioner's former counsel to file a brief,15 is of
no moment. That judgment is void, and it is
precisely the abiding concern of the writ
of habeas corpus to provide redress for
unconstitutional and wrongful convictions.
Vindication of due process, it has been well
said, is precisely the historic office of the Great
Writ. 16
In many respects, this case is similar to that
of Fay v. Noia. 17 Noia was convicted of murder
in 1942 with Santo Caminito and Frank Bonino
in the County Court of Kings County, New
York, in the killing of one Hemmeroff during the
commission of a robbery. The sole evidence
against each defendant was his signed
confession. Caminito and Bonino, but not Noia
appealed their convictions to the Appellate
Division of the New York Supreme Court.
These appeals were unsuccessful but
subsequent legal proceedings resulted in the
releases of Caminito and Bonino upon findings
that their confessions had been coerced and
their conviction therefore procured in violation
of the Fourteenth Amendment. Although Noia's
confession was found to have been coerced,
the United States District Court for the
Southern District of New York held that,
because of Noia's failure to appeal, he must be
denied reliefin view of the provision of 28
U.S.C. sec. 2254 that "An application for a writ
of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State
court shall not be granted unless it appears
that the applicant has exhausted the remedies
available in the courts of the State. ..." The
Court of Appeals for the Second Circuit
reversed the judgment of the District Court and
ordered Noia's conviction set aside, with
direction to discharge him from custody unless
given a new trial forthwith. From that judgment
the State appealed.
As the Supreme Court of the United States
phrased the issue, the "narrow question is
whether the respondent Noia may be granted
federal habeas corpus relief from imprisonment
under a New York conviction now admitted by
the State to rest upon a confession obtained
from him in violation of the Fourteenth
Amendment, after he was denied state post-
conviction relief because the coerced
confession claim had been decided against him
at the trial and Noia had allowed the time for a
direct appeal to lapse without seeking review
by a state appellate court."
 HUMAN RIGHTS PRELIMFULLTEXT CASES
In affirming the judgment of the Court of
Appeals, the United States Supreme Court,
through Mr. Justice Brennan, spoke in enduring
language that may well apply to the case of
Roger Chavez. Said the Court: 1äwphï1.ñët
Today as always few indeed is the
number of State prisoners who
eventually win their freedom by means
of federal habeas corpus. These few
who are ultimately successful are
persons whom society has grievously
wronged and for whom belated
liberation is little enough compensation.
Surely no fair minded person will
contend that those who have been
deprived of their liberty without due
process of law ought nevertheless to
languish in prison. Noia, no less than his
co-defendants Caminito and Bonino, is
conceded to have been the victim of
unconstitutional state action. Noia's
case stands on its own; but surely no
just and humane legal system can
tolerate a result whereby a Caminito and
a Bonino are at liberty because their
confessions were found to have been
coerced yet Noia, whose confession
was also coerced, remains in jail for life.
For such anomalies, such affronts to the
conscience of a civilized society, habeas
corpus is predestined by its historical
role in the struggle for personal liberty to
be the ultimate remedy. If the States
withhold effective remedy, the federal
courts have the power and the duty to
provide it. Habeas Corpus is one of the
precious heritages of Anglo-American
civilization. We do no more today than
confirm its continuing efficacy.
A fitting conclusion of this separate opinion
may perhaps be found in two memorable
admonitions from Marjorie G. Fribourg and
Justice William O. Douglas.
Mrs. Fribourg, in her inimitable phrase, warns
us that —
... Time has taught its age-old lesson.
Well-meaning people burnt witches.
Well-meaning prosecutors have
convicted the innocent. Well-meaning
objectives espoused by those not
grounded in history can lure us from
protecting our heritage of equal justice
under the law. They can entice us, faster
than we like to believe, into endangering
our liberties.18
And these are the unforgettable words of
Justice Douglas:
The challenge to our liberties comes
frequently not from those who
consciously seek to destroy our system
of government, but from men of goodwill
- good men who allow their proper
concerns to blind them to the fact that
what they propose to accomplish
involves an impairment of liberty.
xxx     xxx     xxx
The motives of these men are often
commendable. What we must
remember, however, is that preservation
of liberties does not depend on motives.
A suppression of liberty has the same
effect whether the suppressor be a
reformer or an outlaw. The only
protection against misguided zeal is
constant alertness to infractions of the
guarantees of liberty contained in our
Constitution. Each surrender of liberty to
the demands of the moment makes
easier another, larger surrender. The
battle over the Bill of Rights is a never
ending one. 1äwphï1.ñët
xxx     xxx     xxx
The liberties of any person are the
liberties of all of us.
xxx     xxx     xxx
In short, the liberties of none are safe
unless the liberties of all are protected.
But even if we should sense no danger
to our own liberties, even if we feel
secure because we belong to a group
that is important and respected, we must
recognize that our Bill of Rights is a
code of fair play for the less fortunate
that we in all honor and good
conscience must observe.19
BELTRAN VS. SAMSON
G.R. No. 32025           September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second
Judicial District, and FRANCISCO JOSE,
Provincial Fiscal of Isabela, respondents.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Gregorio P. Formoso and Vicente Formoso for
petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition,
wherein the petitioner complains that the
respondent judge ordered him to appear before
the provincial fiscal to take dictation in his own
handwriting from the latter.
The order was given upon petition of said fiscal
for the purpose of comparing the petitioner's
handwriting and determining whether or not it is
he who wrote certain documents supposed to
be falsified.
There is no question as to the facts alleged in
the complaint filed in these proceedings; but
the respondents contend that the petitioner is
not entitled to the remedy applied for,
inasmuch as the order prayed for by the
provincial fiscal and later granted by the court
below, and again which the instant action was
brought, is based on the provisions of section
1687 of the Administrative Code and on the
doctrine laid down in the cases of People vs.
Badilla (48 Phil., 718); United States vs. Tan
Teng (23 Phil., 145); United States vs. Ong Siu
Hong (36 Phil., 735), cited by counsel for the
respondents, and in the case of Villaflor vs.
Summers (41 Phil., 62) cited by the judge in
the order in question.
Of course, the fiscal under section 1687 of the
Administrative Code, and the proper judge,
upon motion of the fiscal, may compel
witnesses to be present at the investigation of
any crime or misdemeanor. But this power
must be exercised without prejudice to the
constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what
the fiscal demanded, seeks refuge in the
constitutional provision contained in the Jones
Law and incorporated in General Orders, No.
58.
Therefore, the question raised is to be decided
by examining whether the constitutional
provision invoked by the petitioner prohibits
compulsion to execute what is enjoined upon
him by the order against which these
proceedings were taken.
Said provision is found in paragraph 3, section
3 of the Jones Law which (in Spanish) reads:
"Ni se le obligara a declarar en contra suya en
ningun proceso criminal" and has been
incorporated in our Criminal Procedure
(General Orders, No. 58) in section 15 (No. 4 )
and section 56.
As to the extent of the privilege, it should be
noted first of all, that the English text of the
Jones Law, which is the original one, reads as
follows: "Nor shall be compelled in any criminal
case to be a witness against himself."
This text is not limited to declaracion but says
"to be a witness." Moreover, as we are
concerned with a principle contained both in
the Federal constitution and in the constitutions
of several states of the United States, but
expressed differently, we should take it that
these various phrasings have a common
conception.
In the interpretation of the principle,
nothing turns upon the variations of
wording in the constitutional clauses;
this much is conceded (ante, par. 2252).
It is therefore immaterial that the witness
is protected by one constitution from
'testifying', or by another from 'furnishing
evidence', or by another from 'giving
evidence,' or by still another from 'being
a witness.' These various phrasings
have a common conception, in respect
to the form of the protected disclosure.
What is that conception? (4 Wigmore on
Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited
precisely to testimony, but extends to all giving
or furnishing of evidence.
The rights intended to be protected by
the constitutional provision that no man
accused of crime shall be compelled to
be a witness against himself is so
sacred, and the pressure toward their
relaxation so great when the suspicion
of guilt is strong and the evidence
obscure, that is the duty of courts
liberally to construe the prohibition in
favor of personal rights, and to refuse to
permit any steps tending toward their
invasion. Hence, there is the well-
established doctrine that the
constitutional inhibition is directed not
merely to giving of oral testimony, but
embraces as well the furnishing of
evidence by other means than by word
of mouth, the divulging, in short, of any
fact which the accused has a right to
hold secret. (28 R. C. L., paragraph 20,
page 434 and notes.) (Emphasis ours.)
The question, then, is reduced to a
determination of whether the writing from the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
fiscal's dictation by the petitioner for the
purpose of comparing the latter's handwriting
and determining whether he wrote certain
documents supposed to be falsified, constitutes
evidence against himself within the scope and
meaning of the constitutional provision under
examination.
Whenever the defendant, at the trial of his
case, testifying in his own behalf, denies that a
certain writing or signature is in his own hand,
he may on cross-examination be compelled to
write in open court in order that the jury maybe
able to compare his handwriting with the one in
question.
It was so held in the case of Bradford vs.
People (43 Pacific Reporter, 1013) inasmuch
as the defendant, in offering himself as witness
in his own behalf, waived his personal
privileges.
Of like character is the case of Sprouse vs.
Com. (81 Va., 374,378), where the judge asked
the defendant to write his name during the
hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared
to the one now before us. We are not
concerned here with the defendant, for it does
not appear that any information was filed
against the petitioner for the supposed
falsification, and still less as it a question of the
defendant on trial testifying and under cross-
examination. This is only an investigation prior
to the information and with a view to filing it.
And let it further be noted that in the case of
Sprouse vs. Com., the defendant performed
the act voluntarily.
We have also come upon a case wherein the
handwriting or the form of writing of the
defendant was obtained before the criminal
action was instituted against him. We refer to
the case of People vs. Molineux (61
Northeastern Reporter, 286).
Neither may it be applied to the instant case,
because there, as in the aforesaid case of
Sprouse vs. Com., the defendant voluntarily
offered to write, to furnish a specimen of his
handwriting.
We cite this case particularly because the court
there gives prominence to the defendant's right
to decline to write, and to the fact that
he voluntarily wrote. The following appears in
the body of said decision referred to (page 307
of the volume cited):
The defendant had the legal right to
refuse to write for Kinsley. He preferred
to accede to the latter's request, and we
can discover no ground upon which the
writings thus produced can be excluded
from the case. (Emphasis ours.)
For the reason it was held in the case of First
National Bank vs. Robert (41 Mich., 709; 3 N.
W., 199), that the defendant could not be
compelled to write his name, the doctrine being
stated as follows:
The defendant being sworn in his own
behalf denied the endorsement.
He was then cross-examined the
question in regard to his having signed
papers not in the case, and was asked
in particular whether he would not
produce signatures made prior to the
note in suit, and whether he would not
write his name there in the court. The
judge excluded all these inquiries, on
objection, and it is of these rulings that
complaint is made. The object of the
questions was to bring into the case
extrinsic signatures, for the purpose of
comparison by the jury, and we think
that the judge was correct in ruling
against it.
It is true that the eminent Professor Wigmore,
in his work cited (volume 4, page 878), says:
Measuring or photographing the party is
not within the privilege. Nor it is
the removal or replacement of his
garments or shoes. Nor is the
requirement that the party move his
body to enable the foregoing things to
be done. Requiring him to
make specimens of handwriting is no
more than requiring him to move his
body . . ." but he cites no case in
support of his last assertion on
specimens of handwriting. We note that
in the same paragraph 2265, where said
authors treats of "Bodily Exhibition." and
under preposition "1. A great variety of
concrete illustrations have been ruled
upon," he cites many cases, among
them that of People vs. Molineux (61 N.
E., 286) which, as we have seen, has no
application to the case at bar because
there the defendant voluntary gave
specimens of his handwriting, while here
the petitioner refuses to do so and has
even instituted these prohibition
proceedings that he may not be
compelled to do so.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Furthermore, in the case before us, writing is
something more than moving the body, or the
hands, or the fingers; writing is not a purely
mechanical act, because it requires the
application of intelligence and attention; and in
the case at bar writing means that the
petitioner herein is to furnish a means to
determine whether or not he is the falsifier, as
the petition of the respondent fiscal clearly
states. Except that it is more serious, we
believe the present case is similar to that of
producing documents or chattels in one's
possession. And as to such production of
documents or chattels. which to our mind is not
so serious as the case now before us, the
same eminent Professor Wigmore, in his work
cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of
Documents and Chattels. — 1. It follows
that the production of documents or
chattels by a person (whether ordinary
witness or party-witness) in response to
a subpoena, or to a motion to order
production, or to other form of process
treating him as a witness ( i.e. as a
person appearing before a tribunal to
furnish testimony on his moral
responsibility for truthtelling), may be
refused under the protection of the
privilege; and this is universally
conceded. (And he cites the case of
People vs. Gardner, 144 N. Y., 119; 38
N.E., 1003)
We say that, for the purposes of the
constitutional privilege, there is a similarity
between one who is compelled to produce a
document, and one who is compelled to furnish
a specimen of his handwriting, for in both
cases, the witness is required to furnish
evidence against himself.
And we say that the present case is more
serious than that of compelling the production
of documents or chattels, because here the
witness is compelled to write and create, by
means of the act of writing, evidence which
does not exist, and which may identify him as
the falsifier. And for this reason the same
eminent author, Professor Wigmore, explaining
the matter of the production of documents and
chattels, in the passage cited, adds:
For though the disclosure thus sought
be not oral in form, and though the
documents or chattels be already in
existence and not desired to be first
written and created by testimonial act or
utterance of the person in response to
the process, still no line can be drawn
short of any process which treats him as
a witness; because in virtue it would be
at any time liable to make oath to the
identity or authenticity or origin of the
articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
It cannot be contended in the present case that
if permission to obtain a specimen of the
petitioner's handwriting is not granted, the
crime would go unpunished. Considering the
circumstance that the petitioner is a municipal
treasurer, according to Exhibit A, it should not
be a difficult matter for the fiscal to obtained
genuine specimens of his handwriting. But
even supposing it is impossible to obtain
specimen or specimens without resorting to the
means complained herein, that is no reason for
trampling upon a personal right guaranteed by
the constitution. It might be true that in some
cases criminals may succeed in evading the
hand of justice, but such cases are accidental
and do not constitute the raison d' etre of the
privilege. This constitutional privilege exists for
the protection of innocent persons.
With respect to the judgments rendered by this
court and cited on behalf of the respondents, it
should be remembered that in the case of
People vs. Badilla (48 Phil., 718), it does not
appear that the defendants and other
witnesses were questioned by the fiscal
against their will, and if they did not refuse to
answer, they must be understood to have
waived their constitutional privilege, as they
could certainly do.
The privilege not to give self-
incriminating evidence, while absolute
when claimed, maybe waived by any
one entitled to invoke it. (28 R. C. L.,
paragraph 29, page 442, and cases
noted.)
The same holds good in the case of United
States vs. Tan Teng (23 Phil., 145), were the
defendant did not oppose the extraction from
his body of the substance later used as
evidence against him.
In the case of Villaflor vs. Summers (41 Phil.,
62), it was plainly stated that the court
preferred to rest its decision on the reason of
the case rather than on blind adherence to
tradition. The said reason of the case there
consisted in that it was the case of the
examination of the body by physicians, which
could be and doubtless was interpreted by this
court, as being no compulsion of the petitioner
therein to furnish evidence by means
of testimonial act. In reality she was not
 HUMAN RIGHTS PRELIMFULLTEXT CASES
compelled to execute any positive act, much
less a testimonial act; she was only enjoined
from something preventing the examination; all
of which is very different from what is required
of the petitioner of the present case, where it is
sought to compel him to perform a positive,
testimonial act, to write and give a specimen of
his handwriting for the purpose of comparison.
Besides, in the case of Villamor vs. Summers,
it was sought to exhibit something already in
existence, while in the case at bar, the question
deals with something not yet in existence, and
it is precisely sought to compel the petitioner to
make, prepare, or produce by this means,
evidence not yet in existence; in short, to
create this evidence which may seriously
incriminate him.
Similar considerations suggest themselves to
us with regard to the case of United States vs.
Ong Siu Hong (36 Phil., 735), wherein the
defendant was not compelled to perform
any testimonial act, but to take out of his mouth
the morphine he had there. It was not
compelling him to testify or to be a witness or
to furnish, much less make, prepare, or create
through a testimonial act, evidence for his own
condemnation.
Wherefore, we find the present action well
taken, and it is ordered that the respondents
and those under their orders desist and abstain
absolutely and forever from compelling the
petitioner to take down dictation in his
handwriting for the purpose of submitting the
latter for comparison.
Without express pronouncement as to costs.
So ordered.
G.R. No. L-55109             April 8, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee
vs.
EDUARDO AUSTRIA y MONTAÑO, JAIME
DE LA TORRE y PAHILUNA and PABLO
AUSTRIA y CAMELLOSO, accused
appellants.
The Solicitor General for plaintiff-appellee.
Kenneth M. Barredo for Jaime de la Torre.
Joselito R. Delfin for Eduardo Austria and
Pablo Austria.
BIDIN, J.:
This is an appeal from the decision* dated
March 18, 1980 of the then Circuit Criminal
Court, 12th Judicial District, Bacolod City,
finding accused-appellants Eduardo Austria,
Pablo Austria and Jaime dela Torre guilty of
the crime of robbery with homicide and
sentencing them to suffer the penalty of death,
to jointly and severally indemnify the heirs of
deceased Tomas Azuelo in the amount of
P12,000.00 and to pay the costs (Rollo, pp. 12-
13).
It appears from the records that in the morning
of August 10, 1975, the police dug out of the
ground in a sugarcane field in sitio Palanas,
Sagay, Negros Occidental, the lifeless body of
Tomas Azuelo. Found near his grave were the
traces of blood and a bloodstained piece of
wood. Post mortem examination showed that
Tomas Azuelo's skull was fractured and his
body sustained eighteen (18) stab wounds,
fifteen (15) of which were fatal. The payroll,
together with the sum of P771.40 intended for
the wages of laborers of Hacienda Austria, of
which Azuelo was the overseer, was missing.
Four suspects for the death of Tomas Azuelo
were picked up by the police working together
with the Philippine Constabulary. One of the
suspects, Pablo Austria, was the last person
who was seen with Tomas Azuelo. They
boarded a tricycle together, on August 9, 1975
at about 3:30 p.m., from the poblacion of
Sagay and alighted at about 4:00 p.m. at
crossing Tupas.
The other suspects were implicated based on
the sworn statement dated September 17,
1975 of Pablo Austria, who imputed to his son
Eduardo, his brother-in-law Jaime de la Torre
and Leopoldo Abanilla, the commission of the
crime. In his sworn statement, Pablo Austria
stated that while he and Tomas Azuelo were
on their way home on August 9, 1975, Eduardo
Austria, Jaime de la Torre and Leopoldo
Abanilla suddenly appeared and pulled Tomas
Azuelo toward the sugarcane field. Thereafter,
Jaime de la Torre struck the victims on the
head with a piece of wood while Leopoldo
Abanilla stabbed Tomas Azuelo in different
parts of his body. Jaime de la Torre got the
money inside Tomas Azuelo's pocket and
together, they buried the victim (Original
Records, pp. 7-9).
On September 17, 1975, Gregorio Eras,
Deputy Chief of Police, Sagay, Negros
Occidental, filed a complaint for robbery with
homicide against Eduardo Austria, Pablo
Austria, Jaime de la Torre and Leopoldo
Abanilla, After preliminary examination, Judge
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Emilio Ignalaga, Acting Municipal Judge,
Sagay, Negros Occidental, issued a warrant of
arrest against herein appellants. No bail was
recommended (Original Records, p. 9). On
December 11, 1975, an information was filed
against accused/appellants, which reads:
The undersigned provincial Fiscal
accuses Eduardo Austria y Montano,
Jaime de la Torre y Pahiluna, Pablo
Austria y Camelloso and Leopoldo
Abanilla y Bantalagon of the crime of
Robbery with Homicide, committed as
follows:
That on or about the 9th day of August
1975, in the municipality of Sagay,
province of Negros Occidental,
Philippines, and within the jurisdiction of
this Honorable Court, the abovenamed
accused, armed with a piece of wood
and sharp instrument, by means of
force, violence and intimidation of
person and with intent of gain,
conspiring, confederating and helping
one another, did then and there, wilfully,
unlawfully and feloniously take, steal
and carry away the money in the total
sum of Seven Hundred Seventy-one
Pesos and 40/100 (P771.40), Philippine
Currency, belonging to Tomas Azuelo y
Binigay, without the consent of the latter,
to the damage and prejudice of the said
Tomas Azuelo y Binigay the aforestated
amount.
That on the occasion of the said robbery
and for the purpose of enabling them to
take, steal and carry away the money to
be robbed, the said accused, in
furtherance of their conspiracy, with
intent to kill, did then and there, wilfully,
unlawfully and feloniously attack, assault
strike and stab the said Tomas Azuelo y
Binigay, thereby inflicting multiple
injuries on the different part of the body
of the latter which caused the death of
the said victim.
Contrary to law.
(Original Records, pp. 51-52).
All the accused pleaded not guilty to the
charge.
The prosecution then presented the
testimonies of the following witnesses:
Rodolfo Labajas, cashier of the RLC
Management Corp., testified that in the
morning of August 9, 1975, Tomas Azuelo, as
overseer of Hda Austria, received from him the
sum of P771.40 representing the wages of
laborers of said hacienda. Tomas Azuelo left
his office at 12:00 o'clock noon and that was
the last time he saw Tomas Azuelo alive (TSN,
January 27, 1978, pp. 315-333).
Nestor Colegado tricycle driver, testified that at
about 3:30 in the afternoon of August 9, 1975,
the deceased and accused Pablo Austria
boarded his tricycle together with three women
passengers at the poblacion of Sagay Both
Pablo Austria and Tomas Azuelo, who were
neighbors, alighted at crossing Tupas.
(TSN, January 30, 1978, pp. 334-352).
Andres Caro, a farmer/resident of Hda.
Palanas, Sagay, Negros Occidental, testified
that at about 1:00 o'clock in the afternoon of
August 9, 1975, he saw accused Eduardo
Austria standing at the side of the latter's farm
along the road going to Hda Austria. (TSN,
February 23, 1978, pp. 368-372).
Diego de Ocampo, Rural Health Physician of
Sagay, Negros Occidental, declared that in the
morning of August 10, 1975, he, together with
policeman Voltaire Yee, recovered the body of
Tomas Azuelo which was buried in the
sugarcane field. His post mortem examination
showed that Tomas Azuelo had a fractured
skull and his body sustained several stab
wounds, fifteen (15) of which were fatal. Shock
secondary to severe hemmorhage due to
multiple stab wound was the cause of Tomas
Azuelo's death (TSN, February 23, 1978, pp.
356-368).
Voltaire Yee, a police investigator, testified that
in the morning of August 10, 1975, Eugenio
Azuelo reported to the desk officer the
disappearance of his father Tomas Azuelo.
After receiving the report, they proceeded to
the scene of the crime together with other
policemen. There, they saw the payroll and the
protruding toe of a human being buried in the
sugarcane field which the people in the area
discovered. A wooden bat with bloodstains was
found six (6) meters from the protruding toe.
Coins, slippers, fish, and bloodstains were also
discovered in the area. The lifeless body of
Tomas Azuelo, identified by his daughter
Nenita, was exhumed in the presence of Dr.
Ocampo. Joint investigation by the police and
the Philippine Constabulary ensued, after
which Pablo Austria and his son Eduardo were
picked up by the police for investigation. Jaime
de la Torre was also picked up and
investigated on account of a bloodstained hoe
 HUMAN RIGHTS PRELIMFULLTEXT CASES
found in his home. On September 17, 1975,
Pablo Austria executed a sworn statement
implicating his son Eduardo in the commission
of the offense (TSN, August 17, 1978 to
September 20, 1978, pp. 373-391; 1-47).
Vicente Aquino a PC soldier, testified that on
September 16, 1975, he investigated Jaime de
la Torre as one of the suspects in the killing of
Tomas Azuelo. He declared that de la Torre
was informed of his constitutional rights to
remain silent and to counsel but he voluntarily
waived said rights (TSN, January 13, 1976, pp.
253-283).
Myrna Areola, a forensic chemist of the Third
Regional PC Crime Laboratory testified that
upon the request of Capt. Natino she
conducted a laboratory examination of the
short pants of Jaime de la Torre, a hoe, a piece
of wood, soil scraped from the surface of the
hoe and sample of the soil where the victim
was buried. Her findings showed that the blood
stain on the handle of the hoe and that the
piece of wood submitted for examination were
positive for human blood belonging to the same
blood group. The pants, however, were
negative for human blood. Analysis of the soil
also revealed that the soil scraped from the
surface of the hoe and the soil from the place
where the victim was buried were of the same
origin (TSN, November 17, 1977, pp. 283-295).
Emilio Ignalaga, Municipal Judge of Escalante,
Toboso and Sagay, Negros Occidental,
testified that on September 17, 1975 the
accused Jaime de la Torre and Pablo Austria
subscribed before him their written extra-
judicial statements. Before they affixed their
thumbmarks he read and explained to them the
contents of their extrajudicial statements and
warned them that the same can be used
against them. They affixed their thumbmarks
on said document voluntarily (TSN, November
17, 1977, pp. 296-307).
Accused/appellants testified as follows:
Pablo Austria testified that Tomas Azuelo was
his second degree cousin. On August 9, 1975,
he was summoned by the wife of Tomas
Azuelo to fetch water. He was in Azuelo's
house from 11:00 o'clock in the morning, took
his lunch thereat upon invitation of Azuelo's
wife and waited for Tomas Azuelo up to 7:00
o'clock in the evening for his compensation in
plowing their farm. On August 14, 1975, he
was picked up without a warrant of arrest by a
policeman and a PC soldier while working on
the concrete cover of the deceased's tomb. He
was investigated without informing him of his
right to remain silent and to counsel. After six
(6) days in detention he was released upon the
intercession of Iluminada, wife of the
deceased. On September 17, 1975 he was
again picked up by Voltaire Yee at about 7:00
o'clock in the evening. Jaime de la Torre, who
was with him in the PC stockade, struck him in
the head with a revolver on orders of a certain
Torenas, a PC soldier. Later, he was brought
out of the PC stockade and Torenas kicked
and boxed him. The following day, Alberto
Olario, the commanding officer, again
maltreated him as he refused to admit
participation in the killing of Tomas Azuelo. On
orders of the commanding officer, Voltaire Yee
prepared an affidavit. He did not read the
affidavit, as he does not know how to read, nor
was it read to him. Voltaire Yee forced him to
affix his thumbmark in the affidavit inside the
office of Judge Ignalaga. (TSN, December 4,
1978, pp. 171-200)
In his testimony, Jaime de la Torre disowned
the statements attributed to him during the
investigation conducted by Sgt. Vicente Aquino
and instead declared that it was not Eduardo
Austria but Carlos Capitle, Jr. who borrowed
his hoe in the afternoon of August 9, 1975. He
also contradicted the statements contained in
the affidavit that he saw Pablo Austria,
Eduardo Austria and another person standing
near the body of the deceased. Instead, he
testified that in the sugarcane field that day
(August 14, 1975), he saw Carlos Capitle, Jr.
and Celestino Capitle with another person
looking at the dead body of Azuelo. He helped
cover the dead with grass on orders of Carlos
Capitle with warning not to tell his family or
anybody, otherwise his family will be killed. He
admitted ownership of the hoe but denied any
participation in the killing. He also claimed that
he was arrested without warrant and detained
for more than a month in the PC headquarters,
at Sagay, Negros Occidental. During said
detention he was investigated and allegedly
maltreated by Captain Olario (TSN, January
22, 1980, pp. 149-170, 210-221, 393-404).
On rebuttal, the prosecution presented four (4)
witnesses, as follows:
Capt. Olario denied that he manhandled Pablo
Austria and Jaime de la Torre and claimed then
he merely interviewed the suspects; it was Sgt.
Aquino who conducted the formal investigation
after Jaime de la Torre narrated the
commission of the crime and implicated Pablo
Austria and Eduardo Austria. Both Jaime de la
Torre and Pablo Austria admitted to him the
commission of the crime.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
On cross-examination, however, Capt. Olario
admitted that the suspects were not apprised of
their constitutional rights to remain silent and to
counsel as he was merely conducting an
informal interview (TSN, August 23, 1979, pp.
86-148).
Celedonio Capitle, a watchman denied the
imputation of accused Jaime de la Torre that
he participated in the killing of Tomas Azuelo.
He was not even investigated by the police for
the death of the latter and teamed of his
implication only through Roger Azuelo, son of
the deceased (TSN, August 24, 1979, pp. 426-
446).
Carlos Capitle, Jr., also denied that he
borrowed a hoe from Jaime de la Torre on
August 19, 1975; he, his brother, Celedonio,
and another person were not standing and
looking at the dead body of Tomas Azuelo on
the day he was killed; nor did they warn and
threaten de la Torre not to tell anybody about
the incident; he has no participation in the
killing of Tomas Azuelo (TSN, October 15,
1979, pp. 405-425).
Iluminada Azuelo, wife of the deceased,
declared that: before the death of Tomas, only
Pablo Austria was working in the hacienda as
her late husband dismissed Jaime de la Torre
and Eduardo Austria; Pablo Austria worked in
her house in the morning but did not return in
the afternoon of August 9, 1975; she
interceded for the release of Pablo Austria
upon the request of the latter's wife, Leonora,
since there was no strong evidence against
him; the second time Pablo Austria was picked
up, she turned down the request of Leonora for
her to intercede in behalf of Leonora's husband
(October 15, 1975, TSN, pp. 405-417).
In its sur-rebuttal, the defense presented
Paquito Tolentin. Tolentin testified that from
2:00 o'clock in the afternoon up to 5:45 or 6:00
o'clock in the evening of August 9, 1975, he,
together with Pablo Austria, Diosdado Alova,
Ricardo Alova and Eugenio Azuelo were
playing a card game known in the locality as
"41" in the house of Tomas Azuelo. During the
time they were playing, Pablo Austria never left
the place and was in fact there when he left the
house of Tomas Azuelo (November 13, 1979,
TSN, pp. 222-232).
On March 18, 1980, the trial court rendered its
decision convicting appellants of the imputed
crime, the dispositive portion of which reads as
follows:
WHEREFORE, in view of all the
foregoing, the Court finds all accused
Eduardo Austria y Montaño, Jaime de la
Torre y Pahiluna and Pablo Austria y
Camelloso, GUILTY beyond a
reasonable doubt of the offense of
robbery with homicide, as charged, . . .
and pursuant to paragraph 1, Article
294, in relation to paragraphs 13 and 15,
Article 14, of the Revised Penal Code,
the Court sentences all accused.
Eduardo Austria y Montano, Jaime de la
Torre y Pahiluna and Pablo Austria y
Camelloso each to suffer the maximum
penalty provided by law which is
DEATH, to jointly and severally
indemnify the heirs of the late Tomas
Azuelo the amount of P12,000.00. as
indemnity for his death, and to pay the
costs.
During the pendency of the appeal, Pablo
Austria and Jaime de la Torre died of
undetermined cause and hypertension,
respectively, at the New Bilibid Prisons
Hospital. Hence, the resolution of the instant
appeal should be based on the evidence
against the surviving appellant, Eduardo
Austria.
After a review of the records, the Court finds
that the evidence presented by the prosecution
failed to establish the guilt of appellant Eduardo
Austria beyond reasonable doubt.
In the first place, as stated in the appealed
decision, the evidence of the prosecution
against appellant Eduardo Austria is merely
circumstantial. Aside from the extra-judicial
confessions of the deceased appellants, there
is neither direct evidence nor actual witness to
the commission of the crime, This is not to say,
however, that conviction cannot be had simply
because the evidence is circumstantial. To
sustain a conviction based on circumstantial
evidence under Sec. 5, Rule 133, there must.
be (a) more than one circumstance, (b) the
facts from which the inferences are derived are
proven and (c) the combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.
The series of circumstances proved must be
consistent with each other and that each and
every circumstance must be consistent with the
guilt of the accused and inconsistent with his
innocence. To warrant conviction in criminal
cases based upon circumstantial evidence, it
must constitute an unbroken chain of events so
as to lead to a conviction that the accused is
guilty beyond reasonable doubt. In the case at
 HUMAN RIGHTS PRELIMFULLTEXT CASES
bar, the circumstantial evidence do not prove
an unbroken link of events that could give rise
to a reasonable and fair conclusion that
appellant committed the imputed offense.
As regards appellant Eduardo Austria, the only
evidence against him is that he was seen at
about 1:00 o'clock in the afternoon of August 9,
1975 along the road going to Hda Austria. This
evidence even if tied up with the testimony of
Iluminada Azuelo that Austria harbored ill-
feelings against the deceased because he was
dismissed from the hacienda by the deceased
does not establish or support an inference,
much less a conclusion, that he participated in
the commission of the offense charged. The
conviction of appellant Eduardo Austria on an
inference based on another inference cannot
be maintained.
It is axiomatic that conviction should be made
on the basis of a strong, clear and compelling
evidence (People v. Tulagan, 143 SCRA 107
[1986]. Thus, "if the inculpatory facts and
circumstances are capable of two or more
explanations, one of which is consistent with
the innocence of the accused and the other
consistent with his guilt, then the evidence
does not fulfill the tests of moral certainty and
is not sufficient to support a conviction" (People
v. Ale, 145 SCRA 64 [1986]; People v.
Modesto, 25 SCRA 36 [1968]).
To overcome the presumption of innocence,
proof beyond reasonable doubt is needed.
Thus, in People v. Dramayo, 42 SCRA 60
[1971], this Court held:
Accusation is not, according to the
fundamental law, synonymous with guilt;
the prosecution must overthrow the
presumption of innocence with proof of
guilt beyond reasonable doubt. To meet
this standard, there is need for the most
careful scrutiny of the testimony of the
state, both oral and documentary,
independently of whatever defense is
offered by the accused. Only if the judge
below and the appellate tribunal could
arrive at a conclusion that the crime had
been committed precisely by the person
on trial under such an exacting test
should the sentence be one of
conviction. It is thus required that every
circumstance favoring his innocence be
duly taken into account. The proof
against him must survive the test of
reason; the strongest suspicion must not
be permitted to sway judgment.
WHEREFORE, the appealed judgment is
hereby REVERSED and the accused/appellant
Eduardo Austria is ACQUITTED on the ground
of reasonable doubt.
SO ORDERED.
RICARDO DE LA CAMARA VS. HON. LOPEZ
ENAGE
148-B Phil. 502
FERNANDO, J.:
An order of respondent Judge Manuel
Lopez Enage, fixing the bail of petitioner,
Ricardo de la Camara, in the sum of
P1,195,200.00 is assailed in this petition
for certiorari as repugnant to the constitutional
mandate prohibiting excessive bail.[1] The merit
of the petition on its face is thus apparent.
Nonetheless, the relief sought setting aside the
above order by reducing the amount of bail to
P40,000.00 cannot be granted, as in the
meanwhile, petitioner had escaped from the
provincial jail, thus rendering this case moot
and academic.  It is deemed advisable,
however, for the guidance of lower court
judges, to set forth anew the controlling and
authoritative doctrines that should be observed
in fixing the amount of the bail sought in order
that full respect be accorded to such a
constitutional right.
The facts are not in dispute.  Petitioner,
Ricardo de la Camara, Municipal Mayor
of Magsaysay, Misamis Oriental, was arrested
on November 7, 1968 and detained at the
Provincial Jail of Agusan, for his alleged
participation in the killing of fourteen and the
wounding of twelve other laborers of
the Tirador Logging Co. at Nato,
Esperanza, Agusan del Sur, on August 21,
1968.  Thereafter, on November 25, 1968, the
Provincial Fiscal of Agusan filed with the Court
of First Instance a case for multiple frustrated
murder[2] and another for multiple
murder[3] against petitioner, his co-
accused Nambinalot Tagunan and Fortunato G
algo, resulting from the aforesaid
occurrence.  Then on January 14,
1969, came an application for bail filed by
petitioner with the lower court, premised on the
assertion that there was no evidence to link
him with such fatal incident of August 21,
1968.  He likewise maintained his
innocence.  Respondent Judge started the trial
of petitioner on February 24, 1969, the
prosecution resting its case on July 10,
1969.  As of the time of the filing of the petition,
the defense had not presented its evidence.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Respondent Judge, on August 10, 1970,
issued an order granting petitioner's application
for bail, admitting that there was a failure on
the part of the prosecution to prove that
petitioner would flee even if he had the
opportunity, but fixed the amount of the bail
bond at the excessive amount of
P1,195,200.00, the sum of P840,000.00 for the
information charging multiple murder and
P355,200.00 for the offense of multiple
frustrated murder.  Then came the allegation
that on August 12, 1970, the Secretary of
Justice, Vicente Abad Santos, upon being
informed of such order, sent a telegram to
respondent Judge stating that the bond
required "is excessive" and suggesting that a
P40,000.00 bond, either in cash or property,
would be reasonable.  There was likewise a
motion for reconsideration to reduce the
amount.  Respondent Judge however
remained adamant.  Hence this petition.
The answer filed by respondent Judge on
March 5, 1971 set forth the circumstances
concerning the issuance of the above order
and the other incidents of the case, which, to
his mind, would disprove any charge that
he was guilty of grave abuse of discretion. It
stressed, moreover, that the challenged order
would find support in circulars of the
Department of Justice given sanction by this
Court.  He sought the dismissal of the petition
for lack of merit.
In the hearing of the case set for March 31,
1971, there was no appearance for both the
petitioner and respondents with the former,
upon written motion, being given thirty days
within which to submit a memorandum in lieu of
oral argument, respondent Judge in turn having
the same period from receipt thereof to file his
reply.  Such a memorandum was duly
submitted by petitioner on April 6, 1971.
Instead of a reply, respondent Judge
submitted, on May 26, 1971, a supplemental
answer wherein he alleged that petitioner
escaped from the provincial jail on April 28,
1971 and had since then remained at
large.  There was a reiteration then of the
dismissal of this petition for lack of merit, to
which petitioner countered in a pleading dated
June 7, 1971, and filed with this Court the next
day with this plea: "The undersigned counsel,
therefore, vehemently interpose opposition, on
behalf of petitioner, to respondent's prayer for
dismissal of the present petition for lack of
merit.  For, the issue in this case is not alone
the fate of petitioner Ricardo de
la Camara.  The issue in the present petition
that calls for the resolution of this Honorable
Tribunal is the fate of countless other Ricardo
de la Camaras who may be awaiting the clear-
cut definition and declaration of the power of
trial courts in regard to the fixing of bail."[4]
While under the circumstances a ruling on the
merits of the petition for certiorari is not
warranted, still, as set forth at the opening of
this opinion, the fact that this case is moot and
academic should not preclude this Tribunal
from setting forth in language clear and
unmistakable, the obligation of fidelity on the
part of lower court judges to the unequivocal
command of the Constitution that excessive
bail shall not be required.
1.      Before conviction. every person
is bailable except if charged with capital
offenses when the evidence of guilt is strong.
[5]
 Such a right flows from the presumption of
innocence in favor of every accused who
should not be subjected to the loss of freedom
as thereafter he would be entitled to acquittal,
unless his guilt be proved beyond reasonable
doubt. Thereby a regime of liberty is honored in
the observance and not in the breach.  It is not
beyond the realm of probability, however, that
a person charged with a crime especially so
where his defense is weak, would just simply
make himself scarce and thus frustrate the
hearing of his case.  A bail is intended as a
guarantee that such an intent would be
thwarted.  It is, in the language of Cooley, a
"mode short of confinement which would, with
reasonable certainty, insure the attendance of
the accused" for the subsequent trial.[6] Nor is
there anything unreasonable in denying this
right to one charged with a capital offense
when evidence of guilt is strong, as the
likelihood is, rather than await the outcome of
the proceeding against him with a death
sentence, an ever-present threat the
temptation to flee the jurisdiction would be too
great to be resisted.
2.      Where, however the right o bail exists, it
should not be rendered nugatory by requiring a
sum that is excessive.  So the Constitution
commands.  It is understandable why.  If there
were no such prohibition, the right to bail
becomes meaningless.  It would have been
more forthright if no mention of
such a guarantee were found in the
fundamental law. It is not to be lost sight of that
the United States Constitution limits itself to a
prohibition against excessive bail.[7] As
construed in the latest American decision, "the
sole permissible function of money bail is to
assure the accused's presence at trial, and
declared that 'bail set at a higher figure than an
amount reasonably calculated to fulfill this
purpose is "excessive" under the Eighth
Amendment.' "[8]
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Nothing can be clearer, therefore, than that the
challenged order of August 10, 1970 fixing the
amount of P1,195,200.00 as the bail that
should be posted by petitioner, the sum of
P840,000.00 for the information charging
multiple murder, there being fourteen victims.
and the sum of P355,200.00 for the other
offense of multiple frustrated murder, there
being twelve victims, is clearly violative of this
constitutional provision.  Under the
circumstances, there being only two offenses
charged, the amount required as bail could not
possibly exceed P50,000.00 for the information
for murder and P25,000.00 for the other
information for frustrated murder.  Nor should it
be ignored in this case that the Department of
Justice did recommend the total sum of
P40,000.00 for the two offenses.
3.  There is an attempt on the part of
respondent Judge to justify what, on its face,
appears to be indefensible by the alleged
reliance on Villaseñor v. Abaño.[9] The
guidelines in the fixing of bail was there
summarized, in the opinion of Justice Sanchez,
as follows: "(1) ability of the accused to give
bail; (2) nature of the offense; (3) penalty for
the offense charged; (4) character and
reputation of the accused; (5) health of the
accused; (6) character and strength of the
evidence; (7) probability of the accused
appearing in trial; (8) forfeiture of other bonds;
(9) whether the accused was a fugitive from
justice when arrested; and (10) if the accused
is under bond for appearance at trial in other
cases."[10] Respondent Judge, however, did
ignore this decisive consideration appearing at
the end of the above opinion: "Discretion,
indeed, is with the court called upon to rule on
the question of bail.  We must stress, however,
that where conditions imposed upon a
defendant seeking bail would amount to a
refusal thereof and render nugatory the
constitutional right to bail, we will not hesitate
to exercise our supervisory powers to provide
the required remedy."[11]
No attempt at rationalization can therefore give
a color of validity to the challenged
order.  There is grim irony in an accused being
told that he has a right to bail but at the same
time being required to post such an exorbitant
sum.  What aggravates the situation is that the
lower court judge would apparently yield to the
command of the fundamental law.  In reality,
such a sanctimonious avowal of respect for a
mandate of the Constitution was on a purely
verbal level.  There is reason to believe that
any person in the position of petitioner would
under the circumstances be unable to resist
thoughts of escaping from confinement,
reduced as he must have been to a state of
desperation.  In the same breath that he was
told he could be bailed out, the excessive
amount required could only mean that
provisional liberty would be beyond his
reach.  It would have been more forthright if he
were informed categorically that such a right
could not be availed of. There would have been
no disappointment of expectations
then.  It does call to mind these words of
Justice Jackson, "a promise to the ear to be
broken to the hope, a teasing illusion like a
munificent bequest in a pauper's will."[12] It is no
wonder that the resulting frustration left
resentment bitterness in its wake.  Petitioner's
subsequent escape cannot be condoned.  That
is why he is not entitled to the relief prayed
for.  What respondent Judge did, however,
does call for repudiation from this Court.
Nor is there any justification then for imputing
his inability to fix a lesser amount by virtue of
an alleged reliance on a decision of this
Tribunal.  Even if one were charitably inclined,
the mildest characterization of such a result is
that there was a clear misreading of
the Abaño opinion when such a meaning was
ascribed to it.  No doctrinal refinement may
elicit approval if to do so would be to reduce
the right to bail to a barren form of words.  Not
only is the order complained of absolutely
bereft of support in law, but it flies in the face of
common sense.  It is not too much to say that it
is at war with the command of reason.
With petitioner, however, having escaped from
the provincial jail, no ruling can be had on his
plea to nullify the above order.
WHEREFORE, this case is dismissed for being
moot and academic.  Without
pronouncement as to costs.
Concepcion, C.J., Reyes,
J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, 
Barredo, and Villamor, JJ., concur.
Ruiz Castro, J., in the result.
Makasiar, J., did not take part.
[1]
 The Constitution provides: "All persons shall
before conviction be bailable by sufficient
sureties, except those charged with capital
offenses when evidence of guilt is
strong.  Excessive bail shall not be required."
Art. III, Sec. 1, par. 16.
[2]
 Criminal Case No. 3563.
[3]
 Criminal Case No. 3564.
[4]
 Reply, par. III, pp. 3-4.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
[5]
 Art. III, Sec. 1, par. 16, Constitution. BLAS F. OPLE, petitioner,
[6]
According to Cooley: "If there were any mode
vs.
short of confinement which would, with
reasonable certainty, insure the attendance of
RUBEN D. TORRES, ALEXANDER
the accused to answer the accusation, it would
AGUIRRE, HECTOR VILLANUEVA, CIELITO
not be justifiable to inflict upon him that
HABITO, ROBERT BARBERS,
indignity, when the effect is to subject him, in a
CARMENCITA REODICA, CESAR SARINO,
greater or less degree, to the punishment of a
RENATO VALENCIA, TOMAS P. AFRICA,
guilty person, while as yet it is not determined
HEAD OF THE NATIONAL COMPUTER
that he has committed any crime.  If the
CENTER and CHAIRMAN OF THE
punishment on conviction cannot exceed in
COMMISSION ON AUDIT, respondents.
severity the forfeiture of a large sum of money,
then it is reasonable to suppose that such
a sum of money, or an agreement by
responsible parties to pay it to the government
PUNO, J.:
in case the accused should fail to appear,
would be sufficient security for his attendance;
The petition at bar is a commendable effort on
and therefore, at the common law, it was
the part of Senator Blas F. Ople to prevent the
customary to take security of this
shrinking of the right to privacy, which the
character in all cases of misdemeanor; one or
revered Mr. Justice Brandeis considered as
more friends of the accused undertaking for his
"the most comprehensive of rights and the right
appearance for trial, and agreeing
most valued by civilized men." 1 Petitioner
that a certain sum of money should be levied of
Ople prays that we invalidate Administrative
their goods and chattels, lands and tenements,
Order No. 308 entitled "Adoption of a
if he made default.  But in the case of felonies
National Computerized Identification
the privilege of giving bail before trial was not a
Reference System" on two important
matter of right; and in this country, although the
constitutional grounds, viz: one, it is a
criminal code is much more merciful than it
usurpation of the power of Congress to
formerly was in England, and in some cases
legislate, and two, it impermissibly intrudes
the allowance of bail is almost a matter of
on our citizenry's protected zone of privacy.
course, there are others in which it is
We grant the petition for the rights sought
discretionary with the magistrate to allow it or
to be vindicated by the petitioner need
not and where it will sometimes be refused if
stronger barriers against further erosion.
the evidence of guilt is strong or the
presumption great.  Capital offenses are not
A.O. No. 308 was issued by President Fidel
generally regarded as bailable; at least, after
V. Ramos On December 12, 1996 and reads
indictment, or when the party is charged by the
as follows:
finding of a coroner's jury: and this upon the
supposition that one who may be subjected to
ADOPTION OF A NATIONAL
the terrible punishment that would follow a
COMPUTERIZED
conviction, would not for any mere pecuniary
considerations remain to abide the
IDENTIFICATION REFERENCE
judgment.  And where the death penalty is
SYSTEM
abolished and imprisonment for life substituted,
it is believed that the rule would be the same
WHEREAS, there is a need to
notwithstanding this change, and bail would still
provide Filipino citizens and
be denied in the case of the highest offenses,
foreign residents with the
except under very peculiar circumstances.  In
facility to conveniently transact
the case of other felonies it is not usual to
business with basic service
refuse bail, and in some of the State
and social security providers
constitutions it has been deemed important to
and other government
make it a matter of right in all cases except on
instrumentalities;
capital charges 'when the proof is evident or
the presumption great.' " I Cooley. A Treatise
on the Constitutional Limitations, 643-644 WHEREAS, this will require a
(1927). computerized system to
properly and efficiently identify
persons seeking basic services
on social security and reduce,
G.R. No. 127685 July 23, 1998 if not totally eradicate
 HUMAN RIGHTS PRELIMFULLTEXT CASES
fraudulent transactions and Managing Director, National
misrepresentations; Computer Center.

WHEREAS, a concerted and Sec. 3. Secretariat. The

collaborative effort among the National Computer Center
various basic services and (NCC) is hereby designated as
social security providing secretariat to the IACC and as
agencies and other such shall provide
government intrumentalities is administrative and technical
required to achieve such a support to the IACC.
system;
Sec. 4. Linkage Among
NOW, THEREFORE, I, FIDEL V. Agencies. The Population
RAMOS, President of the Reference Number (PRN)
Republic of the Philippines, by generated by the NSO shall
virtue of the powers vested in serve as the common reference
me by law, do hereby direct the number to establish a linkage
following: among concerned agencies.
The IACC Secretariat shall
Sec. 1. Establishment of a coordinate with the different
National Compoterized Social Security and Services
Identification Reference Agencies to establish the
System. A decentralized standards in the use of
Identification Reference Biometrics Technology and in
System among the key basic computer application designs
services and social security of their respective systems.
providers is hereby
established. Sec. 5. Conduct of Information
Dissemination Campaign. The
Sec. 2. Inter-Agency Office of the Press Secretary,
Coordinating Committee. An in coordination with the
Inter-Agency Coordinating National Statistics Office, the
Committee (IACC) to draw-up GSIS and SSS as lead agencies
the implementing guidelines and other concerned agencies
and oversee the shall undertake a massive tri-
implementation of the System media information
is hereby created, chaired by dissemination campaign to
the Executive Secretary, with educate and raise public
the following as members: awareness on the importance
and use of the PRN and the
Head, Presidential Social Security Identification
Management Staff Reference.

Secretary, National Economic Sec. 6. Funding. The funds

Development Authority necessary for the
implementation of the system
Secretary, Department of the shall be sourced from the
Interior and Local Government respective budgets of the
concerned agencies.
Secretary, Department of
Health Sec. 7. Submission of Regular
Reports. The NSO, GSIS and
Administrator, Government SSS shall submit regular
Service Insurance System, reports to the Office of the
President through the IACC, on
Administrator, Social Security the status of implementation of
System, this undertaking.

Administrator, National Sec. 8. Effectivity. This

Statistics Office Administrative Order shall take
effect immediately.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
DONE in the City of Manila, this A. THE INSTANT PETITION IS
12th day of December in the NOT A JUSTICIABLE CASE AS
year of Our Lord, Nineteen WOULD WARRANT A
Hundred and Ninety-Six. JUDICIAL REVIEW;

(SGD.) FIDEL V. RAMOS B. A.O. NO. 308 [1996] WAS

ISSUED WITHIN THE
A.O. No. 308 was published in four EXECUTIVE AND
newspapers of general circulation on ADMINISTRATIVE POWERS OF
January 22, 1997 and January 23, 1997. On THE PRESIDENT WITHOUT
January 24, 1997, petitioner filed the instant ENCROACHING ON THE
petition against respondents, then LEGISLATIVE POWERS OF
Executive Secretary Ruben Torres and the CONGRESS;
heads of the government agencies, who as
members of the Inter-Agency Coordinating C. THE FUNDS NECESSARY
Committee, are charged with the FOR THE IMPLEMENTATION
implementation of A.O. No. 308. On April 8, OF THE IDENTIFICATION
1997, we issued a temporary restraining REFERENCE SYSTEM MAY BE
order enjoining its implementation. SOURCED FROM THE
BUDGETS OF THE
Petitioner contends: CONCERNED AGENCIES;

A. THE ESTABLISNMENT OF A D. A.O. NO. 308 [1996]

NATIONAL COMPUTERIZED PROTECTS AN INDIVIDUAL'S
IDENTIFICATION REFERENCE INTEREST IN PRIVACY. 3
SYSTEM REQUIRES A
LEGISLATIVE ACT. THE We now resolve.
ISSUANCE OF A.O. NO. 308 BY
THE PRESIDENT OF THE I
REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, As is usual in constitutional litigation,
AN UNCONSTITUTIONAL respondents raise the threshold issues
USURPATION OF THE relating to the standing to sue of the
LEGISLATIVE POWERS OF petitioner and the justiciability of the case
THE CONGRESS OF THE at bar. More specifically, respondents aver
REPUBLIC OF THE that petitioner has no legal interest to
PHILIPPINES. uphold and that the implementing rules of
A.O. No. 308 have yet to be promulgated.
B. THE APPROPRIATION OF
PUBLIC FUNDS BY THE These submissions do not deserve our
PRESIDENT FOR THE sympathetic ear. Petitioner Ople is a
IMPLEMENTATION OF A.O. distinguished member of our Senate. As a
NO. 308 IS AN Senator, petitioner is possessed of the
UNCONSTITUTIONAL requisite standing to bring suit raising the
USURPATION OF THE issue that the issuance of A.O. No. 308 is a
EXCLUSIVE RIGHT OF usurpation of legislative power. 4 As
CONGRESS TO APPROPRIATE taxpayer and member of the Government
PUBLIC FUNDS FOR Service Insurance System (GSIS), petitioner
EXPENDITURE. can also impugn the legality of the
misalignment of public funds and the
C. THE IMPLEMENTATION OF misuse of GSIS funds to implement A.O.
A.O. NO. 308 INSIDIOUSLY No. 308. 5
LAYS THE GROUNDWORK
FOR A SYSTEM WHICH WILL The ripeness for adjudication of the Petition
VIOLATE THE BILL OF RIGHTS at bar is not affected by the fact that the
ENSHRINED IN THE implementing rules of A.O. No. 308 have yet
CONSTITUTION. 2 to be promulgated. Petitioner Ople assails
A.O. No. 308 as invalid per se and as
Respondents counter-argue: infirmed on its face. His action is not
premature for the rules yet to be
promulgated cannot cure its fatal defects.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Moreover, the respondents themselves
have started the implementation of A.O. No.
308 without waiting for the rules. As early
as January 19, 1997, respondent Social
Security System (SSS) caused the
publication of a notice to bid for the
manufacture of the National Identification
(ID) card. 6 Respondent Executive Secretary
Torres has publicly announced that
representatives from the GSIS and the SSS
have completed the guidelines for the
national identification system. 7 All signals
from the respondents show their
unswerving will to implement A.O. No. 308
and we need not wait for the formality of the
rules to pass judgment on its
constitutionality. In this light, the dissenters
insistence that we tighten the rule on
standing is not a commendable stance as
its result would be to throttle an important
constitutional principle and a fundamental
right.
II
We now come to the core issues. Petitioner
claims that A.O. No. 308 is not a mere
administrative order but a law and hence,
beyond the power of the President to issue.
He alleges that A.O. No. 308 establishes a
system of identification that is all-
encompassing in scope, affects the life and
liberty of every Filipino citizen and foreign
resident, and more particularly, violates
their right to privacy.
Petitioner's sedulous concern for the
Executive not to trespass on the lawmaking
domain of Congress is understandable. The
blurring of the demarcation line between
the power of the Legislature to make laws
and the power of the Executive to execute
laws will disturb their delicate balance of
power and cannot be allowed. Hence, the
exercise by one branch of government of
power belonging to another will be given a
stricter scrutiny by this Court.
The line that delineates Legislative and
Executive power is not indistinct.
Legislative power is "the authority, under
the Constitution, to make laws, and to alter
and repeal them." 8 The Constitution, as the
will of the people in their original, sovereign
and unlimited capacity, has vested this
power in the Congress of the
Philippines. 9 The grant of legislative power
to Congress is broad, general and
comprehensive. 10 The legislative body
possesses plenary power for all purposes
of civil government. 11 Any power, deemed
to be legislative by usage and tradition, is
necessarily possessed by Congress, unless
the Constitution has lodged it
12
elsewhere.   In fine, except as limited by
the Constitution, either expressly or
impliedly, legislative power embraces all
subjects and extends to matters of general
concern or common interest. 13
While Congress is vested with the power to
enact laws, the President executes the
laws. 14 The executive power is vested in the
Presidents. 15 It is generally defined as the
power to enforce and administer the
laws. 16 It is the power of carrying the laws
into practical operation and enforcing their
due observance. 17
As head of the Executive Department, the
President is the Chief Executive. He
represents the government as a whole and
sees to it that all laws are enforced by the
officials and employees of his
department. 18 He has control over the
executive department, bureaus and offices.
This means that he has the authority to
assume directly the functions of the
executive department, bureau and office or
interfere with the discretion of its
officials.19 Corollary to the power of control,
the President also has the duty of
supervising the enforcement of laws for the
maintenance of general peace and public
order. Thus, he is granted administrative
power over bureaus and offices under his
control to enable him to discharge his
duties effectively. 20
Administrative power is concerned with the
work of applying policies and enforcing
orders as determined by proper
governmental organs. 21 It enables the
President to fix a uniform standard of
administrative efficiency and check the
official conduct of his agents. 22 To this end,
he can issue administrative orders, rules
and regulations.
Prescinding from these precepts, we hold
that A.O. No. 308 involves a subject that is
not appropriate to be covered by an
administrative order. An administrative
order is:
Sec. 3. Administrative Orders.
— Acts of the President which
relate to particular aspects of
governmental operation in
pursuance of his duties as
administrative head shall be
 HUMAN RIGHTS PRELIMFULLTEXT CASES
promulgated in administrative
orders. 23
An administrative order is an
ordinance issued by the President
which relates to specific aspects in
the administrative operation of
government. It must be in harmony
with the law and should be for the
sole purpose of implementing the law
and carrying out the legislative
policy. 24 We reject the argument that
A.O. No. 308 implements the
legislative policy of the
Administrative Code of 1987. The
Code is a general law and
"incorporates in a unified document
the major structural, functional and
procedural principles of
governance." 25 and "embodies
changes in administrative structure
and procedures designed to serve
the
people." 26 The Code is divided into
seven (7) Books: Book I deals with
Sovereignty and General
Administration, Book II with the
Distribution of Powers of the three
branches of Government, Book III on
the Office of the President, Book IV
on the Executive Branch, Book V on
Constitutional Commissions, Book VI
on National Government Budgeting,
and Book VII on Administrative
Procedure. These Books contain
provisions on the organization,
powers and general administration of
the executive, legislative and judicial
branches of government, the
organization and administration of
departments, bureaus and offices
under the executive branch, the
organization and functions of the
Constitutional Commissions and
other constitutional bodies, the rules
on the national government budget,
as well as guideline for the exercise
by administrative agencies of quasi-
legislative and quasi-judicial powers.
The Code covers both the internal
administration of
government, i.e, internal
organization, personnel and
recruitment, supervision and
discipline, and the effects of the
functions performed by
administrative officials on private
individuals or parties outside
27
government. 
It cannot be simplistically argued that A.O.
No. 308 merely implements the
Administrative Code of 1987. It establishes
for the first time a National Computerized
Identification Reference System. Such a
System requires a delicate adjustment of
various contending state policies — the
primacy of national security, the extent of
privacy interest against dossier-gathering
by government, the choice of policies, etc.
Indeed, the dissent of Mr. Justice Mendoza
states that the A.O. No. 308 involves the all-
important freedom of thought. As said
administrative order redefines the
parameters of some basic rights of our
citizenry vis-a-vis the State as well as the
line that separates the administrative power
of the President to make rules and the
legislative power of Congress, it ought to
be evident that it deals with a subject that
should be covered by law.
Nor is it correct to argue as the dissenters
do that A.D. No. 308 is not a law because it
confers no right, imposes no duty, affords
no proctection, and creates no office. Under
A.O. No. 308, a citizen cannot transact
business with government agencies
delivering basic services to the people
without the contemplated identification
card. No citizen will refuse to get this
identification card for no one can avoid
dealing with government. It is thus clear as
daylight that without the ID, a citizen will
have difficulty exercising his rights and
enjoying his privileges. Given this reality,
the contention that A.O. No. 308 gives no
right and imposes no duty cannot stand.
Again, with due respect, the dissenting
opinions unduly expand the limits of
administrative legislation and consequently
erodes the plenary power of Congress to
make laws. This is contrary to the
established approach defining the
traditional limits of administrative
legislation. As well stated by Fisher: ". . .
Many regulations however, bear directly on
the public. It is here that administrative
legislation must he restricted in its scope
and application. Regulations are not
supposed to be a substitute for the general
policy-making that Congress enacts in the
form of a public law. Although
administrative regulations are entitled to
respect, the authority to prescribe rules and
regulations is not an independent source of
power to make laws." 28
III
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Assuming, arguendo, that A.O. No. 308 The Griswold case invalidated
need not be the subject of a law, still it a Connecticut statute which
cannot pass constitutional muster as an made the use of contraceptives
administrative legislation because facially it a criminal offence on the
violates the right to privacy. The essence of ground of its amounting to an
privacy is the "right to be let alone." 29 In the unconstitutional invasion of
1965 case of Griswold v. Connecticut, 30 the the right of privacy of married
United States Supreme Court gave more persons; rightfully it stressed
substance to the right of privacy when it "a relationship lying within the
ruled that the right has a constitutional zone of privacy created by
foundation. It held that there is a right of several fundamental
privacy which can be found within the constitutional guarantees." It
penumbras of the First, Third, Fourth, Fifth has wider implications though.
and Ninth Amendments, 31 viz: The constitutional right to
privacy has come into its own.
Specific guarantees in the Bill
of Rights have penumbras So it is likewise in our
formed by emanations from jurisdiction. The right to
these guarantees that help give privacy as such is accorded
them life and substance . . . recognition independently of
various guarantees create its identification with liberty; in
zones of privacy. The right of itself, it is fully deserving of
association contained in the constitutional protection. The
penumbra of the First language of Prof. Emerson is
Amendment is one, as we have particularly apt: "The concept
seen. The Third Amendment in of limited government has
its prohibition against the always included the idea that
quartering of soldiers "in any governmental powers stop
house" in time of peace short of certain intrusions into
without the consent of the the personal life of the citizen.
owner is another facet of that This is indeed one of the basic
privacy. The Fourth distinctions between absolute
Amendment explicitly affirms and limited government.
the ''right of the people to be Ultimate and pervasive control
secure in their persons, of the individual, in all aspects
houses and effects, against of his life, is the hallmark of the
unreasonable searches and absolute state. In contrast, a
seizures." The Fifth system of limited government
Amendment in its Self- safeguards a private sector,
Incrimination Clause enables which belongs to the
the citizen to create a zone of individual, firmly
privacy which government may distinguishing it from the
not force him to surrender to public sector, which the state
his detriment. The Ninth can control. Protection of this
Amendment provides: "The private sector — protection, in
enumeration in the other words, of the dignity and
Constitution, of certain rights, integrity of the individual —
shall not be construed to deny has become increasingly
or disparage others retained by important as modern society
the people." has developed. All the forces
of a technological age —
In the 1968 case of Morfe v. industrialization, urbanization,
Mutuc, 32 we adopted the Griswold and organization — operate to
ruling that there is a constitutional narrow the area of privacy and
right to privacy. Speaking thru Mr. facilitate intrusion into it. In
Justice, later Chief Justice, Enrique modern terms, the capacity to
Fernando, we held: maintain and support this
enclave of private life marks
x x x           x x x          x x x the difference between a
democratic and a totalitarian
society."
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Indeed, if we extend our judicial gaze we
will find that the right of privacy is
recognized and enshrined in several
provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the
Bill of Rights:
Sec. 3. (1) The privacy of
communication and
correspondence shall be
inviolable except upon lawful
order of the court, or when
public safety or order requires
otherwise as prescribed by
law.
Other facets of the right to privacy
are protectad in various provisions of
the Bill of Rights, viz: 34
Sec. 1. No person shall be
deprived of life, liberty, or
property without due process
of law, nor shall any person be
denied the equal protection of
the laws.
Sec. 2. The right of the people
to be secure in their persons,
houses papers, and effects
against unreasonable searches
and seizures of whatever
nature and for any purpose
shall be inviolable, and no
search warrant or warrant of
arrest shall issue except upon
probable cause to be
determined personally by the
judge after examination under
oath or affirmation of the
complainant and the witnesses
he may produce, and
particularly describing the
place to be searched and the
persons or things to be seized.
x x x           x x x          x x x
Sec. 6. The liberty of abode and
of changing the same within
the limits prescribed by law
shall not be impaired except
upon lawful order of the court.
Neither shall the right to travel
be impaired except in the
interest of national security,
public safety, or public health
as may be provided by law.
x x x           x x x          x x x
Sec. 8. The right of the people,
including those employed in
the public and private sectors,
to form unions, associations,
or societies for purposes not
contrary to law shall not be
abridged.
Sec. 17. No person shall be
compelled to be a witness
against himself.
Zones of privacy are likewise recognized
and protected in our laws. The Civil Code
provides that "[e]very person shall respect
the dignity, personality, privacy and peace
of mind of his neighbors and other
persons" and punishes as actionable torts
several acts by a person of meddling and
prying into the privacy of another. 35 It also
holds a public officer or employee or any
private individual liable for damages for any
violation of the rights and liberties of
another person, 36 and recognizes the
privacy of letters and other private
communications. 37 The Revised Penal
Code makes a crime the violation of secrets
by an officer, 38 the revelation of trade and
industrial secrets, 39 and trespass to
40
dwelling.   Invasion of privacy is an offense
in special laws like the Anti-Wiretapping
Law, 41 the Secrecy of Bank Deposits
Act 42 and the Intellectual Property
43
Code.   The Rules of Court on privileged
communication likewise recognize the
privacy of certain information. 44
Unlike the dissenters, we prescind from the
premise that the right to privacy is a
fundamental right guaranteed by the
Constitution, hence, it is the burden of
government to show that A.O. No. 308 is
justified by some compelling state interest
and that it is narrowly drawn. A.O. No. 308
is predicated on two considerations: (1) the
need to provides our citizens and
foreigners with the facility to conveniently
transact business with basic service and
social security providers and other
government instrumentalities and (2) the
need to reduce, if not totally eradicate,
fraudulent transactions and
misrepresentations by persons seeking
basic services. It is debatable whether
these interests are compelling enough to
warrant the issuance of A.O. No. 308. But
what is not arguable is the broadness, the
vagueness, the overbreadth of A.O. No. 308
which if implemented will put our people's
right to privacy in clear and present danger.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The heart of A.O. No. 308 lies in its Section
4 which provides for a Population
Reference Number (PRN) as a "common
reference number to establish a linkage
among concerned agencies" through the
use of "Biometrics Technology" and
"computer application designs."
Biometry or biometrics is "the science of
the applicatin of statistical methods to
biological facts; a mathematical analysis of
biological data." 45 The term "biometrics"
has evolved into a broad category of
technologies which provide precise
confirmation of an individual's identity
through the use of the individual's own
physiological and behavioral
characteristics. 46 A physiological
characteristic is a relatively stable physical
characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A
behavioral characteristic is influenced by
the individual's personality and includes
voice print, signature and keystroke. 47 Most
biometric idenfication systems use a card
or personal identificatin number (PIN) for
initial identification. The biometric
measurement is used to verify that the
individual holding the card or entering the
PIN is the legitimate owner of the card or
PIN. 48
A most common form of biological
encoding is finger-scanning where
technology scans a fingertip and turns the
unique pattern therein into an individual
number which is called a biocrypt. The
biocrypt is stored in computer data
banks 49 and becomes a means of
identifying an individual using a service.
This technology requires one's fingertip to
be scanned every time service or access is
provided. 50 Another method is the retinal
scan. Retinal scan technology employs
optical technology to map the capillary
pattern of the retina of the eye. This
technology produces a unique print similar
to a finger print. 51 Another biometric
method is known as the "artificial nose."
This device chemically analyzes the unique
combination of substances excreted from
the skin of people. 52 The latest on the list of
biometric achievements is the thermogram.
Scientists have found that by taking
pictures of a face using infra-red cameras, a
unique heat distribution pattern is seen.
The different densities of bone, skin, fat and
blood vessels all contribute to the
individual's personal "heat signature." 53
In the last few decades, technology has
progressed at a galloping rate. Some
science fictions are now science facts.
Today, biometrics is no longer limited to the
use of fingerprint to identify an individual. It
is a new science that uses various
technologies in encoding any and all
biological characteristics of an individual
for identification. It is noteworthy that A.O.
No. 308 does not state what specific
biological characteristics and what
particular biometrics technology shall be
used to identify people who will seek its
coverage. Considering the banquest of
options available to the implementors of
A.O. No. 308, the fear that it threatens the
right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas
for a further look will show that it does not
state whether encoding of data is limited to
biological information alone for
identification purposes. In fact, the Solicitor
General claims that the adoption of the
Identification Reference System will
contribute to the "generation of population
data for development planning." 54 This is
an admission that the PRN will not be used
solely for identification but the generation
of other data with remote relation to the
avowed purposes of A.O. No. 308. Clearly,
the indefiniteness of A.O. No. 308 can give
the government the roving authority to
store and retrieve information for a purpose
other than the identification of the
individual through his PRN.
The potential for misuse of the data to be
gathered under A.O. No. 308 cannot be
undarplayed as the dissenters do. Pursuant
to said administrative order, an individual
must present his PRN everytime he deals
with a government agency to avail of basic
services and security. His transactions with
the government agency will necessarily be
recorded — whether it be in the computer
or in the documentary file of the agency.
The individual's file may include his
transactions for loan availments, income
tax returns, statement of assets and
liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the
use of the PRN, the better the chance of
building a huge formidable informatin base
through the electronic linkage of the
files. 55 The data may be gathered for gainful
and useful government purposes; but the
existence of this vast reservoir of personal
information constitutes a covert invitation
 HUMAN RIGHTS PRELIMFULLTEXT CASES
to misuse, a temptation that may be too
great for some of our authorities to resist. 56
We can even grant, arguendo, that the
computer data file will be limited to the
name, address and other basic personal
infomation about the individual. 57 Even that
hospitable assumption will not save A.O.
No. 308 from constitutional infirmity for
again said order does not tell us in clear
and categorical terms how these
information gathered shall he handled. It
does not provide who shall control and
access the data, under what circumstances
and for what purpose. These factors are
essential to safeguard the privacy and
guaranty the integrity of the
information. 58 Well to note, the computer
linkage gives other government agencies
access to the information. Yet, there are no
controls to guard against leakage of
information. When the access code of the
control programs of the particular computer
system is broken, an intruder, without fear
of sanction or penalty, can make use of the
data for whatever purpose, or worse,
manipulate the data stored within the
system. 59
It is plain and we hold that A.O. No. 308 falls
short of assuring that personal information
which will be gathered about our people will
only be processed for unequivocally
specified purposes. 60 The lack of proper
safeguards in this regard of A.O. No. 308
may interfere with the individual's liberty of
abode and travel by enabling authorities to
track down his movement; it may also
enable unscrupulous persons to access
confidential information and circumvent the
right against self-incrimination; it may pave
the way for "fishing expeditions" by
government authorities and evade the right
against unreasonable searches and
seizures. 61 The possibilities of abuse and
misuse of the PRN, biometrics and
computer technology are accentuated when
we consider that the individual lacks
control over what can be read or placed on
his ID, much less verify the correctness of
the data encoded. 62 They threaten the very
abuses that the Bill of Rights seeks to
prevent. 63
The ability of sophisticated data center to
generate a comprehensive cradle-to-grave
dossier on an individual and transmit it over
a national network is one of the most
graphic threats of the computer
revolution. 64 The computer is capable of
producing a comprehensive dossier on
individuals out of information given at
different times and for varied purposes. 65 It
can continue adding to the stored data and
keeping the information up to date.
Retrieval of stored date is simple. When
information of a privileged character finds
its way into the computer, it can be
extracted together with other data on the
subject. 66 Once extracted, the information
is putty in the hands of any person. The end
of privacy begins.
Though A.O. No. 308 is undoubtedly not
narrowly drawn, the dissenting opinions
would dismiss its danger to the right to
privacy as speculative and hypothetical.
Again, we cannot countenance such a
laidback posture. The Court will not be true
to its role as the ultimate guardian of the
people's liberty if it would not immediately
smother the sparks that endanger their
rights but would rather wait for the fire that
could consume them.
We reject the argument of the Solicitor
General that an individual has a reasonable
expectation of privacy with regard to the
Natioal ID and the use of biometrics
technology as it stands on quicksand. The
reasonableness of a person's expectation
of privacy depends on a two-part test: (1)
whether by his conduct, the individual has
exhibited an expectation of privacy; and (2)
whether this expectation is one that society
recognizes as reasonable. 67 The factual
circumstances of the case determines the
reasonableness of the
expectation. 68 However, other factors, such
as customs, physical surroundings and
practices of a particular activity, may serve
to create or diminish this expectation. 69 The
use of biometrics and computer technology
in A.O. No. 308 does not assure the
individual of a reasonable expectation of
privacy. 70 As technology advances, the
level of reasonably expected privacy
decreases. 71 The measure of protection
granted by the reasonable expectation
diminishes as relevant technology becomes
more widely accepted. 72 The security of the
computer data file depends not only on the
physical inaccessibility of the file but also
on the advances in hardware and software
computer technology. A.O. No. 308 is so
widely drawn that a minimum standard for a
reasonable expectation of privacy,
regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be by the IACC
cannot remedy this fatal defect. Rules and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
regulations merely implement the policy of
the law or order. On its face, A.O. No. gives
the IACC virtually infettered discretion to
determine the metes and bounds of the ID
System.
Nor do your present laws prvide adequate
safeguards for a reasonable expectation of
privacy. Commonwealth Act. No. 591
penalizes the disclosure by any person of
data furnished by the individual to the NSO
with imprisonment and fine. 73 Republic Act.
No. 1161 prohibits public disclosure of SSS
employment records and reports. 74 These
laws, however, apply to records and data
with the NSO and the SSS. It is not clear
whether they may be applied to data with
the other government agencies forming part
of the National ID System. The need to
clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should
be given to Congress.
Next, the Solicitor General urges us to
validate A.O. No. 308's abridgment of the
right of privacy by using the rational
relationship test. 75 He stressed that the
purposes of A.O. No. 308 are: (1) to
streamline and speed up the
implementation of basic government
services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate
population data for development planning.
He cocludes that these purposes justify the
incursions into the right to privacy for the
means are rationally related to the end. 76
We are not impressed by the argument.
In Morfe v. Mutuc, 77 we upheld the
constitutionality of R.A. 3019, the Anti-Graft
and Corrupt Practices Act, as a valid police
power measure. We declared that the law, in
compelling a public officer to make an
annual report disclosing his assets and
liabilities, his sources of income and
expenses, did not infringe on the
individual's right to privacy. The law was
enacted to promote morality in public
administration by curtailing and minimizing
the opportunities for official corruption and
maintaining a standard of honesty in the
public service. 78
The same circumstances do not obtain in
the case at bar. For one, R.A. 3019 is a
statute, not an administrative order.
Secondly, R.A. 3019 itself is sufficiently
detailed. The law is clear on what practices
were prohibited and penalized, and it was
narrowly drawn to avoid abuses. IN the
case at bar, A.O. No. 308 may have been
impelled by a worthy purpose, but, it cannot
pass constitutional scrutiny for it is not
narrowly drawn. And we now hod that when
the integrity of a fundamental right is at
stake, this court will give the challenged
law, administrative order, rule or regulation
a stricter scrutiny. It will not do for the
authorities to invoke the presumption of
regularity in the performance of official
duties. Nor is it enough for the authorities
to prove that their act is not irrational for a
basic right can be diminished, if not
defeated, even when the government does
not act irrationally. They must satisfactorily
show the presence of compelling state
interests and that the law, rule or regulation
is narrowly drawn to preclude abuses. This
approach is demanded by the 1987
Constitution whose entire matrix is
designed to protect human rights and to
prevent authoritarianism. In case of doubt,
the least we can do is to lean towards the
stance that will not put in danger the rights
protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the
Solicitor General is also off-line. In Whalen,
the United States Supreme Court was
presented with the question of whether the
State of New York could keep a centralized
computer record of the names and
addresses of all persons who obtained
certain drugs pursuant to a doctor's
prescription. The New York State Controlled
Substance Act of 1972 required physicians
to identify parties obtaining prescription
drugs enumerated in the statute, i.e., drugs
with a recognized medical use but with a
potential for abuse, so that the names and
addresses of the patients can be recorded
in a centralized computer file of the State
Department of Health. The plaintiffs, who
were patients and doctors, claimed that
some people might decline necessary
medication because of their fear that the
computerized data may be readily available
and open to public disclosure; and that
once disclosed, it may stigmatize them as
drug addicts. 80 The plaintiffs alleged that
the statute invaded a constitutionally
protected zone of privacy, i.e., the
individual interest in avoiding disclosure of
personal matters, and the interest in
independence in making certain kinds of
important decisions. The U.S. Supreme
Court held that while an individual's interest
in avoiding disclosuer of personal matter is
an aspect of the right to privacy, the statute
did not pose a grievous threat to establish a
constitutional violation. The Court found
that the statute was necessary to aid in the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
enforcement of laws designed to minimize
the misuse of dangerous drugs. The
patient-identification requirement was a
product of an orderly and rational
legislative decision made upon
recommmendation by a specially appointed
commission which held extensive hearings
on the matter. Moreover, the statute was
narrowly drawn and contained numerous
safeguards against indiscriminate
disclosure. The statute laid down the
procedure and requirements for the
gathering, storage and retrieval of the
informatin. It ebumerated who were
authorized to access the data. It also
prohibited public disclosure of the data by
imposing penalties for its violation. In view
of these safeguards, the infringement of the
patients' right to privacy was justified by a
valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these
vital safeguards.
Even while we strike down A.O. No. 308, we
spell out in neon that the Court is not per
se agains the use of computers to
accumulate, store, process, retvieve and
transmit data to improve our bureaucracy.
Computers work wonders to achieve the
efficiency which both government and
private industry seek. Many information
system in different countries make use of
the computer to facilitate important social
objective, such as better law enforcement,
faster delivery of public services, more
efficient management of credit and
insurance programs, improvement of
telecommunications and streamlining of
financial activities. 81 Used wisely, data
stored in the computer could help good
administration by making accurate and
comprehensive information for those who
have to frame policy and make key
decisions. 82 The benefits of the computer
has revolutionized information technology.
It developed the internet, 83 introduced the
concept of cyberspace 84 and the
information superhighway where the
individual, armed only with his personal
computer, may surf and search all kinds
and classes of information from libraries
and databases connected to the net.
In no uncertain terms, we also underscore
that the right to privacy does not bar all
incursions into individual privacy. The right
is not intended to stifle scientific and
technological advancements that enhance
public service and the common good. It
merely requires that the law be narrowly
focused 85 and a compelling interest justify
such intrusions. 86 Intrusions into the right
must be accompanied by proper safeguards
and well-defined standards to prevent
unconstitutional invasions. We reiterate
that any law or order that invades individual
privacy will be subjected by this Court to
strict scrutiny. The reason for this stance
was laid down in Morfe v. Mutuc, to wit:
The concept of limited
government has always
included the idea that
governmental powers stop
short of certain intrusions into
the personal life of the citizen.
This is indeed one of the basic
disctinctions between absolute
and limited government.
Ultimate and pervasive control
of the individual, in all aspects
of his life, is the hallmark of the
absolute state. In contrast, a
system of limited government
safeguards a private sector,
which belongs to the
individual, firmly
distinguishing it from the
public sector, which the state
can control. Protection of this
private sector — protection, in
other words, of the dignity and
integrity of the individual —
has become increasingly
important as modern society
has developed. All the forces
of a technological age —
industrialization, urbanization,
and organization — operate to
narrow the area of privacy and
facilitate intrusion into it. In
modern terms, the capacity to
maintain and support this
enclave of private life marks
the difference between a
democratic and a totalitarian
society. 87
IV
The right to privacy is one of the most
threatened rights of man living in a mass
society. The threats emanate from various
sources — governments, journalists,
employers, social scientists, etc. 88 In th
case at bar, the threat comes from the
executive branch of government which by
issuing A.O. No. 308 pressures the people
to surrender their privacy by giving
information about themselves on the
pretext that it will facilitate delivery of basic
services. Given the record-keeping power
 HUMAN RIGHTS PRELIMFULLTEXT CASES
of the computer, only the indifferent fail to
perceive the danger that A.O. No. 308 gives
the government the power to compile a
devastating dossier against unsuspecting
citizens. It is timely to take note of the well-
worded warning of Kalvin, Jr., "the
disturbing result could be that everyone will
live burdened by an unerasable record of
his past and his limitations. In a way, the
threat is that because of its record-keeping,
the society will have lost its benign capacity
to forget." 89 Oblivious to this counsel, the
dissents still say we should not be too
quick in labelling the right to privacy as a
fundamental right. We close with the
statement that the right to privacy was not
engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted
and Adminisrative Order No. 308 entitled
"Adoption of a National Computerized
Identification Reference System" declared
null and void for being unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ., concur.
Narvasa, C.J., I join Justices Kapunan and
Mendoza in their dissents.
Regalado, J., In the result.
Davide, Jr., In the result and I join Mr.
Justice Panganiban in his separate opinion.
Romero, J., Please see separate opinion.
Melo, J., I join the dissents of Justices
Kapunan and Mendoza.
Vitug, J., See separate opinion.
Kapunan, J., See dissenting opinion.
Mendoza, J., Please see dissenting opinion.
Panganiban, J., Please see Separate
Opinion.
Quisumbing, J., I join in dissenting opinion
of JJ. Mendoza and Kapunan.
Purisima, J., I join in Justice Mendoza's
dissenting.
 
 
Separate Opinions
 
ROMERO, J., separate opinion;
What marks offs man from a beast?
Aside from the distinguishing physical
characteristics, man is a rational being, one
who is endowed with intellect which allows
him to apply reasoned judgment to
problems at hand; he has the innate
spiritual faculty which can tell, not only
what is right but, as well, what is moral and
ethical. Because of his sensibilities,
emotions and feelings, he likewise
possesses a sense of shame. In varying
degrees as dictated by diverse cultures, he
erects a wall between himself and the
outside world wherein he can retreat in
solitude, protecting himself from prying
eyes and ears and their extensions, whether
form individuals, or much later, from
authoritarian intrusions.
Piercing through the mists of time, we find
the original Man and Woman defying the
injunction of God by eating of the forbidden
fruit in the Garden. And when their eyes
were "opened" forthwith "they sewed fig
leaves together, and made themselves
aprons." 1 Down the corridors of time, we
find man fashioning "fig leaves" of sorts or
setting up figurative walls, the better to
insulate themselves from the rest of
humanity.
Such vague stirrings of the desire "to be
left alone," considered "anti-social" by
some, led to the development of the
concept of "privacy," unheard of among
beasts. Different branches of science, have
made their own studies of this craving of
the human spirit — psychological,
anthropological sociological and
philosophical, with the legal finally giving
its imprimatur by elevating it to the status
ofa right, specifically a private right.
Initially recognized as an aspect of tort law,
it created giant waves in legal circles with
the publication in the Harvard Law
Review 2 of the trail-blazing article, "The
Right to Privacy," by Samuel D. Warren and
Louis D. Brandeis.
Whether viewed as a personal or a property
right, it found its way in Philippine
Constitutions and statutes; this, in spite of
the fact that Philippine culture can hardly
 HUMAN RIGHTS PRELIMFULLTEXT CASES
be said to provide a fertile field for the
burgeoning of said right. In fact, our
lexicographers have yet to coin a word for it
in the Filipino language. Customs and
practices, being what they have always
been, Filipinos think it perfectly natural and
in good taste to inquire into each other's
intimate affairs.
One has only to sit through a televised talk
show to be convinced that what passes for
wholesome entertainment is actually an
invasion into one's private life, leaving the
interviewee embarrassed and outraged by
turns.
With the overarching influence of common
law and the recent advent of the Information
Age with its high-tech devices, the right to
privacy has expanded to embrace its public
law aspect. The Bill of Rights of our
evolving Charters, a direct transplant from
that of the United States, contains in
essence facets of the right to privacy which
constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law
such as Administrative Order No. 308 in
making inroads into the private lives of the
citizens, a virtual Big Brother looking over
our shoulder, that it must, without delay, be
"slain upon sight" before our society turns
totalitarian with each of us, a mindless
robot.
I, therefore, VOTE for the nullification of
A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed
by my esteemed colleague, Mr. Justice
Reynato S. Puno, echoing that of the
petitioner, the Honorable Blas F. Ople, on
the issuance of Administrative Order No.
308 by the President of the Philippines and
the dangers its implementation could bring.
I find it hard, nevertheless, to peremptorily
assume at this time that the administrative
order will be misused and to thereby ignore
the possible benefits that can be derived
from, or the merits of, a nationwide
computerized identification reference
system. The great strides and swift
advances in technology render it
inescapable that one day we will, at all
events, have to face up with the reality of
seeing extremely sophisticated methods of
personal identification and any attempt to
stop the inevitable may either be short-lived
or even futile. The imperatives, I believe,
would instead be to now install specific
safeguards and control measures that may
be calculated best to ward-off probable ill
effects of any such device. Here, it may be
apropos to recall the pronouncement of this
Court in People vs. Nazario 1 that —
As a rule, a statute or [an] act
may be said to be vague when
it lacks comprehensible
standards that men "of
common intelligence must
necessarily guess at its
meaning and differ as to its
application." It is repugnant to
the Constitution in two
respects: (1) it violates due
process for failure to accord
persons, especially the parties
targeted by it, fair notice of the
conduct to avoid; and (2) it
leaves law enforcers unbridled
discretion in carrying out its
provisions and becomes an
arbitrary flexing of the
Government muscle. 2
Administrative Order No. 308 appears
to be so extensively drawn that
could, indeed, allow unbridled
options to become available to its
implementors beyond the reasonable
comfort of the citizens and of
residents alike.
Prescinding from the foregoing, and most
importantly to this instance, the subject
covered by the questioned administrative
order can have far-reaching consequences
that can tell on all individuals, their liberty
and privacy, that, to my mind, should make
it indispensable and appropriate to have the
matter specifically addressed by the
Congress of the Philippines, the policy-
making body of our government, to which
the task should initially belong and to which
the authority to formulate and promulgate
that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of
Administrative Order No. 308 for being an
undue and impermissible exercise of
legislative power by the Executive.
PANGANIBAN, J., separate opinion;
 HUMAN RIGHTS PRELIMFULLTEXT CASES
I concur only in the result and only on the ADOPTION OF A NATIONAL
ground that an executive issuance is not COMPUTERIZED
legally sufficient to establish an all-
encompassing computerized system of IDENTIFICATION REFERENCE
identification in the country. The subject SYSTEM
matter contained in AO 308 is beyond the
powers of the President to regulate without WHEREAS, there is a need to
a legislative enactment. provide Filipino citizens and
foreign residents with the
I reserve judgmeht on the issue of wherher facility to conveniently transact
a national ID system is an infringement of business with basic services
the constitutional right to privacy or the and social security providers
freedom of thought until after Congress and other government
passes, if ever, a law to this effect. Only instrumentalities;
then, and upon the filing of a proper
petition, may the provisions of the statute WHEREAS, this will require a
be scrutinized by the judiciary to determine computerized system to
their constitutional foundation. Until such properly and efficiently identify
time, the issue is premature; and any persons seeking basic services
decision thereon, speculative and and social security and reduce,
1
academic.  if not totally eradicate,
fraudulent transactions and
Be that as it may, the scholarly discussions misrepresentations;
of Justices Romero, Puno, Kapunan and
Mendoza on the constitutional right to WHEREAS, a concerted and
privacy and freedom of thought may stil collaborative effort among the
become useful guides to our lawmakers, various basic services and
when and if Congress should deliberate on social security providing
a bill establishing a national identification agencies and other
system. government instrumentalities
is required to achieve such a
Let it be noted that this Court, as shown by system;
the voting of the justices, has not
definitively ruled on these points. The NOW, THEREFORE, I, FIDEL V.
voting is decisive only on the need for the RAMOS, President of the
appropriate legislation, and it is only on this Repubic of the Philippines, by
ground that the petition is granted by this virtue of the powers vested in
Court. me by law, do hereby direct the
following:
 
Sec. 1 Establishment of a
KAPUNAN, J., dissenting opinion; National Computerized
Identification Reference
The pioneering efforts of the executive to System. A decentralized
adopt a national computerized identification Identification Reference
reference system has met fierce opposition. System among the key basic
It has spun dark predictions of sinister services and social security
government ploys to tamper with the providers is hereby
citizen's right to privacy and ominous established.
forecasts of a return to authoritarianism.
Lost in the uproar, however, is the simple Sec. 2. Inter-Agency
fact that there is nothing in the whole Coordinating Committee. An
breadth and lenght of Administrative Order Inter-Agency Coordinating
No. 308 that suggests a taint constitutional Committee (IACC) to draw-up
infirmity. the implementing guidelines
and oversee the
A.O. No. 308 issued by President Fidel V. implementation of the System
Ramos on 12 December 1996 reads: is hereby created, chaired by
the Executive Secretary, with
ADMTNISTRATIVE ORDER NO. the following as members:
308
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Head Presidential in coordination with the
Management Staff National Statistics Offices, the
GSIS and SSS as lead agencies
Secretary, and other concerned agencies
National Economic shall undertake a massive tri-
Development media information
Authority dissemination campaign to
educate and raise public
Secretary, awareness on the importance
Department of the and use of the PRN and the
Interior and Local Social Security Identification
Government Reference.

Secretary, Sec. 6. Funding. The funds

Department of necessary for the
Health implementation of the system
shall be sourced from the
Administrator, respective budgets of the
Government concerned agencies.
Service Insurance
System Sec. 7. Submission of Regular
Reports. The NSO, GSIS and
Administrator, SSS shall submit regular
Social Security reports to the Office of the
System President, through the IACC,
on the status of
Administrator, implementation of this
National Statistics undertaking.
Office
Sec. 8 Effectivity. This
Managing Administartive Order shall take
Director, National effect immediately.
Computer Center
DONE in the City of Manila, this
Sec. 3. Secretariat. The 12th day of December in the
National Computer Center year of Our Lord, Nineteen
(NCC) is hereby designated as Hundred and Ninety-Six.
secretariat to the IACC and as
such shall provide In seeking to strike down A.O. No. 308 as
administrative and technical unconstitutional, petitioner argues:
support to the IACC.
A. THE ESTABLISHMENT OF
Sec. 4. Linkage Among NATIONAL COMPUTERIZED
Agencies. The Population IDENTIFICATION REFERENCE
Reference Number (PRN) SYSTEM REQUIRES A
generated by the NSO shall LEGISLATIVE ACT. THE
serve as the common reference ISSUACE OF A.O. NO. 308 BY
number to establish a linkage THE PRESIDENT OF THE
among concerned agencies. REPUBLIC OF THE
The IACC Secretariat shall PHILIPPINES IS, THEREFORE,
coordinate with the different AN UNCONSTITUTIONAL
Social Security and Services USURPATION OF THE
Agencies to establish the LEGISLATIVE POWERS OF
standards in the use of THE CONGRESS OF THE
Biometrics Technology and in REPUBLIC OF THE
computer application designs PHILIPPINES.
of their respective systems.
B. THE APPROPRIATION OF
Sec. 5. Conduct of Information PUBLIC FUNDS BY THE
Dissemination Campaign. The PRESIDENT FOR THE
Office of the Press Secretary, IMPLEMENTATION OF A.O.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
NO. 308 IS AN 1. Opening of bank
UNCONSTITUTIONAL accounts
USURPATION OF THE
EXCLUSIVE RIGHT OF 2. Encashment of
CONGRESS TO APPROPRIATE checks
PUBLIC FUNDS FOR
EXPENDITURE. 3. Applications for
loans, credit
C. THE IMPLEMENTATION OF cards, water,
A.O. NO. 308 INSIDIOUSLY power,
LAYS THE GROUNDWORK telephones,
FOR A SYSTEM WHICH WILL pagers, etc.
VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE 4. Purchase of
CONSTITUTION. stocks

The National Computerized Identification 5. Application for

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

Third. There is no basis for believing that, In recent years this Court has
beyond the identification of individuals, the found in a number of cases
System will be used for illegal purposes. that constitutional violations
Nor are sanctions lacking for the may arise from the deterrent or
unauthorized use or disclosure of ''chilling," effect of
information gathered by the various governmental regulations that
agencies constituting the System. For fall short of a direct prohibition
example, as the Solicitor General points against the exercise of First
out. C.A. No. 591. §4 penalizes the Amendment rights. [Citation of
unauthorized use or disclosure of data cases omitted] In none of these
furnished the NSO with a fine of not more cases, however, did the chilling
than P600.00 or imprisonment for not more effect arise merely from the
than six months or both. individual's knowledge that a
governmental agency was
At all events, at this stage, it is premature to engaged in certain activities or
pass on the claim that the Identification from the individual's
Reference System can be used for the concomitant fear that, armed
purpose of compiling massive dossiers on with the fruits of those
individuals that can be used to curtail basic activities, the agency might in
civil and political rights since, if at all, this the future take some other and
can only be provided in the implementing additional action detrimental to
rules and regulations which have yet to be that individual. Rather, in each
promulgated. We have already stated that of these cases, the challenged
A.O. No. 308 is not a statute. Even in the exercise of governmental
case of statutes, however, where power was regulatory,
implementing rules are necessary to put proscriptive, or compulsory in
them into effect, it has been held that an nature, and the complainant
attack on their constitutionality would be was either presently or
premature. 17 As Edgar in King Lear puts it, prospectively subject to the
"Ripeness is all." 18 For, to borrow some regulations, proscriptions, or
more Shakespearean lines, compulsions that he was
challenging. . . .
The canker galls
the infants of the [T]hese decisions have in no
spring way eroded the "established
principle that to entitle a
Too oft before private individual to invoke the
their buttons be judicial power to determine the
disclos'd. 19 validity of executive or
legislative action he must show
That, more than any doctrine of that he was sustained or is
constitutional law I can think of, immediately in danger of
succinctly expresses the rule on sustaining a direct injury as the
ripeness, prematurity, and result of that action. . . .
hypothetical, speculative, or
conjectural claims. The respondents do not meet
this test; [the] alleged
Of special relevance to this case is Laird v. "chilling" effect may perhaps
Tatum. 20 There, a class suit was brought be seen as arising from
seeking declaratory and injunctive relief on respondents' perception of the
the claim that a U.S. Army intelligence system as inappropriate to the
surveillance of civilian political activity Army's role under our form of
having "a potential for civil disorder" government, or as arising from
exercised "a present inhibiting effect on respondents' beliefs that it is
[respondents'] full expression and inherently dangerous for the
utilization of their First Amendment rights." military to be concerned with
In holding the case nonjusticiable, the U.S. activities in the civilian sector,
or as arising from respondents'
 HUMAN RIGHTS PRELIMFULLTEXT CASES
less generalized yet
speculative apprehensiveness
that the Army may at some
future date misuse the
information in some way that
would cause direct harm to
respondents. Allegations of a
subjective "chill" are not an
adequate substitute for a claim
of specific present objective
harm or a threat of specific
future harm: "the federal
courts established pursuant to
Article III of the Constitution do
not render advisory
opinions." United Public
Workers v. Mitchell, 330 US 75,
89, 91 L Ed 754, 766, 67 S Ct
556 (1947).
Fourth. Given the fact that no right of
privacy is involved in this case and that any
objection to the identification Reference
System on the ground that it violates
freedom of thought is premature,
speculative, or conjectural pending the
issuance of the implementing rules, it is
clear that petitioner Blas F. Ople has no
cause of action and, therefore, no standing
to bring this action. Indeed, although he
assails A.O. No. 308 on the ground that it
violates the right of privacy, he claims no
personal injury suffered as a result of the
Order in question. Instead, he says he is
bringing this action as taxpayer, Senator,
and member of the Government Service
Insurance System.
Insofar as petitioner claims an interest as
taxpayer, it is sufficient to say that A.O. No.
308 does not involve the exercise of the
taxing or spending power of the
government.
Insofar as he purports to sue as a member
of the GSIS, neither does petitioner have an
intertest sufficient to enable him to litigate a
constitutional question. Petitioner claims
that in providing that the funds necessary
for implementing the System shall be taken
from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI,
§25(5) which. provides:
No law shall be passed
authorizing any transfer of
appropriations; however, the
President, the President of the
Senate, the Speaker of the
House of Representatives, the
Chief Justice of the Supreme
Court, and the heads of
Constitutional Commissions
may, by law, be authorized to
augment any item in the
general appropriations law for
their respective offices from
savings in other items of their
respective appropriations.
But, as the Solicitor General states:
Petitioner's argument is
anchored on two erroneous
assumptions: one, that all the
concerned agencies, including
the SSS and the GSIS, receive
budgetary support from the
national government; and two,
that the GAA is the only law
whereby public funds are
appropriated. Both
assumptions are wrong.
The SSS and GSIS do not
presently receive budgetary
support from the National
Government. They have
achieved self-supporting
status such that the
contributions of their members
are sufficient to finance their
expenses. One would be hard
pressed to find in the GAA an
appropriation of funds to the
SSS and the GSIS.
Furthermore, their respective
charters authorize the SSS and
the GSIS to disburse their
funds (Rep. Act No. 1161
[1954], as amended, Sec. 25;
Pres. Decree No. 1146 [1977],
as amended, Sec. 29) without
the need for a separate
appropriation from the
Congress.
Nor as Senator can petitioner claim
standing since no power of Congress is
alleged to have been impaired by the
Administrative Order in question. 22 As
already stated, in issuing A.O. No. 308, the
President did not exercise the legislative
power vested by the Constitution in
Congress. He acted on the basis of his own
powers as administrative head of the
government, as distinguished from his
capacity as the Executive. Dean Sinco
elucidates the crucial distinction thus:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The Constitution of the For the foregoing reasons, the petition
Philippines makes the should be DISMISSED.
President not only the
executive but also the  
administrative head of the
government. . . . Executive # Separate Opinions
power refers to the legal and
political function of the ROMERO, J., separate opinion;
President involving the
exercise of discretion. What marks offs man from a beast?
Administrative power, on the
other hand, concerns itself Aside from the distinguishing physical
with the work of applying characteristics, man is a rational being, one
policies and enforcing orders who is endowed with intellect which allows
as determined by proper him to apply reasoned judgment to
governmental organs. These problems at hand; he has the innate
two functions are often spiritual faculty which can tell, not only
confused by the public: but what is right but, as well, what is moral and
they are distinct from each ethical. Because of his sensibilities,
other. The President as the emotions and feelings, he likewise
executive authority has the possesses a sense of shame. In varying
duty of supervising the degrees as dictated by diverse cultures, he
enforcement of laws for the erects a wall between himself and the
maintenance of general peace outside world wherein he can retreat in
and public order. As solitude, protecting himself from prying
administrative head, his duty is eyes and ears and their extensions, whether
to see that every government form individuals, or much later, from
office is managed and authoritarian intrusions.
maintained properly by the
persons in charge of it in Piercing through the mists of time, we find
accordance with pertinent laws the original Man and Woman defying the
and regulations. injunction of God by eating of the forbidden
fruit in the Garden. And when their eyes
. . . The power of control vested were "opened" forthwith "they sewed fig
in him by the Constitution leaves together, and made themselves
makes for a strongly aprons." 1 Down the corridors of time, we
centralized administrative find man fashioning "fig leaves" of sorts or
system. It reinforces further his setting up figurative walls, the better to
position as the executive of the insulate themselves from the rest of
government, enabling him to humanity.
comply more effectively with
his constitutional duty to Such vague stirrings of the desire "to be
enforce the laws. It enables left alone," considered "anti-social" by
him to fix a uniform standard some, led to the development of the
of a administrative eficiency concept of "privacy," unheard of among
and to check the official beasts. Different branches of science, have
conduct of his agents. The made their own studies of this craving of
decisions of all the officers the human spirit — psychological,
within his department are anthropological sociological and
subject to his power of philosophical, with the legal finally giving
revision, either on his own its imprimatur by elevating it to the status
motion or on the appeal of ofa right, specifically a private right.
some individual who might
deem himself aggrieved by the Initially recognized as an aspect of tort law,
action of an administrative it created giant waves in legal circles with
official. In case of serious the publication in the Harvard Law
dereliction of duty, he may Review 2 of the trail-blazing article, "The
suspend or remove the Right to Privacy," by Samuel D. Warren and
23
officials concerned.  Louis D. Brandeis.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Whether viewed as a personal or a property
right, it found its way in Philippine
Constitutions and statutes; this, in spite of
the fact that Philippine culture can hardly
be said to provide a fertile field for the
burgeoning of said right. In fact, our
lexicographers have yet to coin a word for it
in the Filipino language. Customs and
practices, being what they have always
been, Filipinos think it perfectly natural and
in good taste to inquire into each other's
intimate affairs.
One has only to sit through a televised talk
show to be convinced that what passes for
wholesome entertainment is actually an
invasion into one's private life, leaving the
interviewee embarrassed and outraged by
turns.
With the overarching influence of common
law and the recent advent of the Information
Age with its high-tech devices, the right to
privacy has expanded to embrace its public
law aspect. The Bill of Rights of our
evolving Charters, a direct transplant from
that of the United States, contains in
essence facets of the right to privacy which
constitute limitations on the far-reaching
powers of government.
So terrifying are the possibilities of a law
such as Administrative Order No. 308 in
making inroads into the private lives of the
citizens, a virtual Big Brother looking over
our shoulder, that it must, without delay, be
"slain upon sight" before our society turns
totalitarian with each of us, a mindless
robot.
I, therefore, VOTE for the nullification of
A.O. No. 308.
VITUG, J., separate opinion;
One can appreciate the concern expressed
by my esteemed colleague, Mr. Justice
Reynato S. Puno, echoing that of the
petitioner, the Honorable Blas F. Ople, on
the issuance of Administrative Order No.
308 by the President of the Philippines and
the dangers its implementation could bring.
I find it hard, nevertheless, to peremptorily
assume at this time that the administrative
order will be misused and to thereby ignore
the possible benefits that can be derived
from, or the merits of, a nationwide
computerized identification reference
system. The great strides and swift
advances in technology render it
inescapable that one day we will, at all
events, have to face up with the reality of
seeing extremely sophisticated methods of
personal identification and any attempt to
stop the inevitable may either be short-lived
or even futile. The imperatives, I believe,
would instead be to now install specific
safeguards and control measures that may
be calculated best to ward-off probable ill
effects of any such device. Here, it may be
apropos to recall the pronouncement of this
Court in People vs. Nazario 1 that —
As a rule, a statute or [an] act
may be said to be vague when
it lacks comprehensible
standards that men "of
common intelligence must
necessarily guess at its
meaning and differ as to its
application." It is repugnant to
the Constitution in two
respects: (1) it violates due
process for failure to accord
persons, especially the parties
targeted by it, fair notice of the
conduct to avoid; and (2) it
leaves law enforcers unbridled
discretion in carrying out its
provisions and becomes an
arbitrary flexing of the
Government muscle. 2
Administrative Order No. 308 appears
to be so extensively drawn that
could, indeed, allow unbridled
options to become available to its
implementors beyond the reasonable
comfort of the citizens and of
residents alike.
Prescinding from the foregoing, and most
importantly to this instance, the subject
covered by the questioned administrative
order can have far-reaching consequences
that can tell on all individuals, their liberty
and privacy, that, to my mind, should make
it indispensable and appropriate to have the
matter specifically addressed by the
Congress of the Philippines, the policy-
making body of our government, to which
the task should initially belong and to which
the authority to formulate and promulgate
that policy is constitutionally lodged.
WHEREFORE, I vote for the nullification of
Administrative Order No. 308 for being an
undue and impermissible exercise of
legislative power by the Executive.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
A.O. No. 308 issued by President Fidel V.
Ramos on 12 December 1996 reads:
PANGANIBAN, J., separate opinion;
ADMTNISTRATIVE ORDER NO.
I concur only in the result and only on the 308
ground that an executive issuance is not
legally sufficient to establish an all- ADOPTION OF A NATIONAL
encompassing computerized system of COMPUTERIZED
identification in the country. The subject
matter contained in AO 308 is beyond the IDENTIFICATION REFERENCE
powers of the President to regulate without SYSTEM
a legislative enactment.
WHEREAS, there is a need to
I reserve judgmeht on the issue of wherher provide Filipino citizens and
a national ID system is an infringement of foreign residents with the
the constitutional right to privacy or the facility to conveniently transact
freedom of thought until after Congress business with basic services
passes, if ever, a law to this effect. Only and social security providers
then, and upon the filing of a proper and other government
petition, may the provisions of the statute instrumentalities;
be scrutinized by the judiciary to determine
their constitutional foundation. Until such WHEREAS, this will require a
time, the issue is premature; and any computerized system to
decision thereon, speculative and properly and efficiently identify
1
academic.  persons seeking basic services
and social security and reduce,
Be that as it may, the scholarly discussions if not totally eradicate,
of Justices Romero, Puno, Kapunan and fraudulent transactions and
Mendoza on the constitutional right to misrepresentations;
privacy and freedom of thought may stil
become useful guides to our lawmakers, WHEREAS, a concerted and
when and if Congress should deliberate on collaborative effort among the
a bill establishing a national identification various basic services and
system. social security providing
agencies and other
Let it be noted that this Court, as shown by government instrumentalities
the voting of the justices, has not is required to achieve such a
definitively ruled on these points. The system;
voting is decisive only on the need for the
appropriate legislation, and it is only on this NOW, THEREFORE, I, FIDEL V.
ground that the petition is granted by this RAMOS, President of the
Court. Repubic of the Philippines, by
virtue of the powers vested in
  me by law, do hereby direct the
following:
KAPUNAN, J., dissenting opinion;
Sec. 1 Establishment of a
The pioneering efforts of the executive to National Computerized
adopt a national computerized identification Identification Reference
reference system has met fierce opposition. System. A decentralized
It has spun dark predictions of sinister Identification Reference
government ploys to tamper with the System among the key basic
citizen's right to privacy and ominous services and social security
forecasts of a return to authoritarianism. providers is hereby
Lost in the uproar, however, is the simple established.
fact that there is nothing in the whole
breadth and lenght of Administrative Order Sec. 2. Inter-Agency
No. 308 that suggests a taint constitutional Coordinating Committee. An
infirmity. Inter-Agency Coordinating
Committee (IACC) to draw-up
the implementing guidelines
 HUMAN RIGHTS PRELIMFULLTEXT CASES
and oversee the computer application designs
implementation of the System of their respective systems.
is hereby created, chaired by
the Executive Secretary, with Sec. 5. Conduct of Information
the following as members: Dissemination Campaign. The
Office of the Press Secretary,
Head Presidential in coordination with the
Management Staff National Statistics Offices, the
GSIS and SSS as lead agencies
Secretary, and other concerned agencies
National Economic shall undertake a massive tri-
Development media information
Authority dissemination campaign to
educate and raise public
Secretary, awareness on the importance
Department of the and use of the PRN and the
Interior and Local Social Security Identification
Government Reference.

Secretary, Sec. 6. Funding. The funds

Department of necessary for the
Health implementation of the system
shall be sourced from the
Administrator, respective budgets of the
Government concerned agencies.
Service Insurance
System Sec. 7. Submission of Regular
Reports. The NSO, GSIS and
Administrator, SSS shall submit regular
Social Security reports to the Office of the
System President, through the IACC,
on the status of
Administrator, implementation of this
National Statistics undertaking.
Office
Sec. 8 Effectivity. This
Managing Administartive Order shall take
Director, National effect immediately.
Computer Center
DONE in the City of Manila, this
Sec. 3. Secretariat. The 12th day of December in the
National Computer Center year of Our Lord, Nineteen
(NCC) is hereby designated as Hundred and Ninety-Six.
secretariat to the IACC and as
such shall provide In seeking to strike down A.O. No. 308 as
administrative and technical unconstitutional, petitioner argues:
support to the IACC.
A. THE ESTABLISHMENT OF
Sec. 4. Linkage Among NATIONAL COMPUTERIZED
Agencies. The Population IDENTIFICATION REFERENCE
Reference Number (PRN) SYSTEM REQUIRES A
generated by the NSO shall LEGISLATIVE ACT. THE
serve as the common reference ISSUACE OF A.O. NO. 308 BY
number to establish a linkage THE PRESIDENT OF THE
among concerned agencies. REPUBLIC OF THE
The IACC Secretariat shall PHILIPPINES IS, THEREFORE,
coordinate with the different AN UNCONSTITUTIONAL
Social Security and Services USURPATION OF THE
Agencies to establish the LEGISLATIVE POWERS OF
standards in the use of THE CONGRESS OF THE
Biometrics Technology and in
 HUMAN RIGHTS PRELIMFULLTEXT CASES
REPUBLIC OF THE 6. Pre-requisite for
PHILIPPINES. Voter's ID. 4

B. THE APPROPRIATION OF The card may also be used for private

PUBLIC FUNDS BY THE transactions such as:
PRESIDENT FOR THE
IMPLEMENTATION OF A.O. 1. Opening of bank
NO. 308 IS AN accounts
UNCONSTITUTIONAL
USURPATION OF THE 2. Encashment of
EXCLUSIVE RIGHT OF checks
CONGRESS TO APPROPRIATE
PUBLIC FUNDS FOR 3. Applications for
EXPENDITURE. loans, credit
cards, water,
C. THE IMPLEMENTATION OF power,
A.O. NO. 308 INSIDIOUSLY telephones,
LAYS THE GROUNDWORK pagers, etc.
FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS 4. Purchase of
ENSHRINED IN THE stocks
CONSTITUTION.
5. Application for
The National Computerized Identification work/employment
Reference system to which the NSO, GSIS
and SSS are linked as lead members of the 6. Insurance
IACC is intended to establish uniform claims
standards for ID cards isssued by key
government agencies (like the SSS) 1 for the 7. Receipt of
"efficient identification of persons." 2 Under payments, checks,
the new system, only one reliable and letters, valuables,
tamper-proof I.D. need be presented by the etc. 5
cardholder instead of several identification
papers such as passports and driver's The new identification system would
license, 3 to able to transact with tremendously improve and uplift public
government agencies. The improved ID can service in our country to the benefit of
be used to facilitate public transactions Filipino citizens and resident aliens. It
such as: would promote, facilitate and speed up
legitimate transactions with government
1. Payment of SSS offices as well as with private and business
and GSIS benefits entities. Experience tells us of the constant
delays and inconveniences the public has
2. Applications for to suffer in availing of basic public services
driver's license, and social security benefits because of
BIR TIN, passport, inefficient and not too reliable means of
marriage license, identification of the beneficiaries.
death certificate,
NBI and police Thus, in the "Primer on the Social Security
clearances, and Card and Administrative Order No. 308"
business permits issued by the SSS, a lead agency in the
implementation of the said order, the
3. Availment of following salient features are mentioned:
Medicare services
in hospitals 1. A.O. 308 merely establishes
the standards for I.D. cards
4. Availment of issued by key government
welfare services agencies such as SSS and
GSIS.
5. Application for
work/employment 2. It does not establish a
national I.D. system neither
 HUMAN RIGHTS PRELIMFULLTEXT CASES
does it require a national I.D.
card for every person.
3. The use of the I.D. is
voluntary.
4. The I.D. is not required for
delivery of any government
service. Everyone has the right
to basic government services
as long as he is qualified under
existing laws.
5. The LD. cannot and will not
in any way be used to prevent
one to travel.
6. There will be no
discrimination Non-holders of
the improved I.D. are still
entitled to the same services
but will be subjected to the
usual rigid identification and
verification beforehand.
I
The issue that must first be hurdled is: was
the issuance of A.O. No. 308 an exercise by
the President of legislative power properly
belonging to Congress?
It is not.
The Administrative Code of 1987 has
unequivocally vested the President with
quasi-legislative powers in the form of
executive orders, administrative orders,
proclamations, memorandum orders and
circulars and general or special orders. 6 An
administrative order, like the one under
which the new identification system is
embodied, has its peculiar meaning under
the 1987 Administrative Code:
Sec. 3. Administrative Orders.
— Acts of the President which
relate to particular aspects of
governmental operations in
pursuance of his duties as
administrative head shall be
promulgated in administrative
orders.
The National Computerized Identification
Reference System was established
pursuant to the aforaquoted provision
precisely because its principal purpose, as
expressly stated in the order, is to provide
the people with "the facility to conveniently
transact business" with the various
government agencies providing basic
services. Being the "administrative head," it
is unquestionably the responsibility of the
President to find ways and means to
improve the government bureaucracy, and
make it more professional, efficient and
reliable, specially those government
agencies and instrumentalities which
provide basic services and which the
citizenry constantly transact with, like the
Government Service Insurance System
(GSIS), Social Security System (SSS) and
National Statistics Office (NSO). The
national computerized ID system is one
such advancement. To emphasize, the new
identification reference system is created to
streamline the bureaucracy, cut the red tape
and ultimately achieve administrative
efficiency. The project, therefore, relates to,
is an appropriate subject and falls squarely
within the ambit of the Chief Executive's
administrative power under which, in order
to successfully carry out his administrative
duties, he has been granted by law quasi-
legislative powers, quoted above.
Understandably, strict adherence to the
doctrine of separation of power spawns
differences of opinion. For we cannot divide
the branches of government into water-tight
compartment. Even if such is possible, it is
neither desirable nor feasible. Bernard
Schwartz, in his work Administrative Law, A
Casebook, thus states:
To be sure, if we think of the
separation of powers as
carrying out the distinction
between legislation and
administration with
mathematical precision and as
dividing the branches of
government into watertight
compartments, we would
probably have to conclude that
any exercise of lawmaking
authority by an agency is
automatically invalid. Such a
rigorous application of the
constitutional doctrine is
neither desirable nor feasible;
the only absolute separation
that has ever been possible
was that in the theoretical
writings of a Montesquieu, who
looked across at foggy
England from his sunny
Gascon vineyards and
completely misconstrued what
he saw. 7
 HUMAN RIGHTS PRELIMFULLTEXT CASES
A mingling of powers among the three
branches of government is not a novel
concept. This blending of powers has
become necessary to properly address the
complexities brought about by a rapidly
developing society and which the
traditional branches of government have
difficulty coping with. 8
It has been said that:
The true meaning of the
general doctrine of the
separation of powers seems to
be that the whole power of one
department should not be
exercised by the same hands
which possess the whole
power of either of the other
department, and that no one
department ought to possess
directly or indirectly an
overruling influence over the
others. And it has been that
this doctrine should be applied
only to the powers which
because of their nature are
assigned by the constitution
itself to one of the departments
exclusively. Hence, it does not
necessarily follow that an
entire and complete separation
is either desirable of was ever
intended, for such a complete
separation would be
impracticable if not impossible;
there may be-and frequently
are-areas in which executive,
legislative, and judicial powers
blend or overlap; and many
officers whose duties cannot
be exclusively placed under
any one of these heads.
The courts have perceived the
necessity of avoiding a narrow
construction of a state
constitutional provision for the
division of the powers of the
government into three distinct
departments, for it is
impractical to view the
provision from the standpoint
of a doctrinaire. Thus, the
modern view of separation of
powers rejects the
metaphysical abstractions and
reverts instead to more
pragmatic, flexible, functional
approach, giving recognition to
the fact that then may be a
certain degree of blending or
admixture of the three powers
of the government. Moreover,
the doctrine of separation of
powers has never been strictly
or rigidly applied, and indeed
could not be, to all the
ramifications of state or
national governments;
government would prove
abortive if it were attempted to
follow the policy of separation
to the letter. 9
In any case A.O. No. 308 was promulgated
by the President pursuant to the quasi-
legislative powers expressly granted to him
by law and in accordance with his duty as
administrative head. Hence, the contention
that the President usurped the legislative
prerogatives of Congress has no firm basis.
II
Having resolved that the President has the
authority and prerogative to issue A.O. No.
308, I submit that it is premature for the
Court to determine the constitutionality or
unconstitutionality of the National
Computerized Identification Reference
System.
Basic in constitutional law is the rule that
before the court assumes jurisdiction over
and decide constitutional issues, the
following requisites must first be satisfied:
1) there must be an actual case or
controversy involving a conflict of rights
susceptible of judicial determination;
2) the constitutional question must be
raised by a proper party;
3) the constitutional question must be
raised at the earliest opportunity; and
4) the resolution of the constitutional
question must be necessary to the
resolution of the case. 10
In this case, it is evident that the first
element is missing. Judicial intervention
calls for an actual case or controversy
which is defined as "an existing case or
controversy that is appropriate or ripe for
determination, not conjectural or
11
anticipatory."   Justice Isagani A. Cruz
further expounds that "(a) justifiable
controversy is thus distinguished from a
difference or dispute of a hypothetical or
 HUMAN RIGHTS PRELIMFULLTEXT CASES
abstract character or from one that is order simply provides the system's general
academic or moot. The controversy must be framework. Without the concomitant
definite and concrete, touching the legal guidelines, which would spell out in detail
relations of parties having adverse legal how this new identification system would
interests. It must be a real and substantial work, the perceived violation of the right to
controversy admitting of special relief privacy amounts to nothing more than mere
through a decree that is conclusive in surmise and speculation.
character, as distinguished from an opinion
advising what the law would be upon a What has caused much of the hysteria over
hypothetical state of facts. . . ." 12 A.O. No. the National Computerized Identification
308 does not create any concrete or Reference System is the possible utilization
substantial controversy. It provides the of Biometrics Technology which refers to
general framework of the National the use of autnomated matching of
Computerized Identification Reference physiological or behavioral characteristics
System and lays down the basic standards to identify a person that would violated the
(efficiency, convenience and prevention of citizen's constitutionally protected right to
fraudulent transactions) for its cretion. But privacy.
as manifestly indicated in the subject order,
it is the Inter-Agency Coordinating The majority opinion has enumerated
Committee (IACC) which is tasked to various forms and methods of Biometrics
research, study and formulate the Technology which if adopted in the National
guidelines and parameters for the use of Computaized Identification Reference
Biometrics Technology and in computer System would seriously threaten the right
application designs that will and define give to privacy. Among which are biocrypt
substance to the new system. 13 This retinal scan, artificial nose and thermogram.
petition is, thus, premature considering that The majority also points to certain alleged
the IACC is still in the process of doing the deficiencies of A O. No. 308. Thus:
leg work and has yet to codify and formalize
the details of the new system. 1) A.O. No. 308 does not
specify the particular
The majority opines that the petition is ripe Biometrics Technology that
for adjudication even without the shall be used for the new
promulgation of the necessary guidelines in identification system.
view of the fact that respondents have
begun implementation of A.O. No. 308. The 2) The order dots not state
SSS, in particular, has started advertising in whether encoding of data is
newspapers the invitation to bid for the limited to biological
production of the I.D. cards. 14 information alone for
identification purposes;
I beg to disagree. It is not the new system
itself that is intended to be implemented in 3) There is no provision as to
the invitation to bid but only the who shall control and access
manufacture of the I.D. cards. Biometrics the data, under what
Technology is not and cannot be used in circumstances and for what
the I.D. cards as no guidelines therefor have purpose; and
yet been laid down by the IACC. Before the
assailed system can be set up, it is 4) There are no controls to
imperative that the guidelines be issued guard against leakage of
first. information, thus heightening
the potential for misuse and
III abuse.

Without the essential guidelines, the
principal contention for invalidating the new
identification reference system — that it is
an impermissible encroachment on the
constitutionally recognized right to privacy
— is plainly groundless. There is nothing in
A.O. No. 308 to serve as sufficient basis for
a conclusion that the new system to be
evolved violates the right to privacy. Said
We should not be overwhelmed by the mere
mention of the Biometrics Technology and
its alleged, yet unfounded "far-reaching
effects."
There is nothing in A.O. No. 308, as it is
worded, to suggest that the advanced
methods of the Biometrics Technology that
 HUMAN RIGHTS PRELIMFULLTEXT CASES
may pose danger to the right of privacy will
be adopted.
The standards set in A.O. No. 308 for the
adoption of the new system are clear-cut
and unequivocably spelled out in the
"WHEREASES" and body of the order,
namely, the need to provide citizens and
foreign residents with the facility
to conveniently transact business
with basic service and social
security providers and other government
instrumentalities; the computerized system
is intended
to properly and efficiently identify persons
seeking basic services or social
security and reduce, if not totally eradicate
fraudulent transactions and
misreprentation; the national identification
reference system is established among
the key basic services and social security
providers; and finally, the IACC Secretariat
shall coordinate with different Social
Security and Services Agencies to establish
the standards in the use of Biometrics
Technology. Consequently, the choice of
the particular form and extent of Biometrics
Technology that will be applied and the
parameters for its use (as will be defined in
the guidelines) will necessarily and logically
be guided, limited and circumscribed by the
afore-stated standards. The fear entertained
by the majority on the potential dangers of
this new technology is thus securedly
allayed by the specific limitations set by the
above-mentioned standards. More than this,
the right to privacy is well-esconced in and
directly protected by various provisions of
the Bill of Rights, the Civil Code, the
Revised Penal Code, and certain laws, all so
painstakingly and resourcefully catalogued
in the majority opinion. Many of these laws
provide penalties for their violation in the
form of imprisonment, fines, or damages.
These laws will serve as powerful
deterrents not only in the establishment of
any administrative rule that will violate the
constitutionally protected right to privacy,
but also to would-be transgressors of such
right.
Relevant to this case is the ruling of the
U.S. Supreme Court in Whalen v. Roe. 15 In
that case, a New York statute was
challenged for requiring physicians to
identify patients obtaining prescription
drugs of the statute's "Schedule II"
category (a class of drugs having a
potential for abuse and a recognized
medical use) so the names and addresses
of the prescription drug patients can be
recorded in a centralized computer file
maintained by the New York State
Department of Health. Some patients
regularly receiving prescription for
"Schedule II" drugs and doctors who
prescribed such drugs brought an action
questioning the validity of the statute on the
ground that it violated the plaintiffs'
constitutionally protected rights of privacy.
In a unanimous decision, the US Supreme
Court sustained the validity of the statute
on the ground that the patient identification
requirement is a reasonable exercise of the
State's broad police powers. The Court also
held that there is no support in the record
for an assumption that the security
provisions of the statute will be
adiministered improperly. Finally, the Court
opined that the remote possibility that
judicial supervision of the evidentiary use
of particular items of stored information will
not provide adequate protection against
unwarranted diclosures is not a sufficient
reason for invalidating the patient-
identification program.
To be sure, there is always a possibility of
an unwarranted disclosure of confidential
matters enomously accumulated in
computerized data banks and in
government records relating to taxes,
public health, social security benefits,
military affairs, and similar matters. But as
previously pointed out, we have a sufficient
number of laws prohibiting and punishing
any such unwarranted disclosures. Anent
this matter, the observation in Whalen vs.
Roe is instructive:
. . . We are not unaware of the
threat to privacy implicit in the
accumulation of vast amounts
of personal information in
computerized data banks or
other massive government
files. The collection of taxes,
the distribution of welfare and
social security benefits, the
supervision of public health,
the direction of our Armed
Forces and the enforcement of
the criminal laws all require the
orderly preservation of great
quantities of information, much
of which is personal in
character and potentially
embarrassing or harmful if
disclosed. The right to collect
and use such data for public
purposes is typically
 HUMAN RIGHTS PRELIMFULLTEXT CASES
accompanied by a concomitant
statutory or regulatory duty to
avoid unwarranted disclosures.
. . . 16
The majority laments that as technology
advances, the level of reasonably expected
privacy decreases. That may be true.
However, court should tread daintily on the
field of social and economic
experimentation lest they impede or
obstruct the march of technology to
improve public services just on the basis of
an unfounded fear that the experimentation
violates one's constitutionally protected
rights. In the sobering words of Mr. Justice
Brandeis:
To stay experimentation in
things social and economic is
a grave responsibility. Denial
of the right to experiment may
be fraught with serious
consequences to the Nation. It
is one of the happy incidents of
the federal system that a single
courageous State may, if its
citizens choose, serve as a
laboratory; and try novel social
and economic experiments
without risk to the rest of the
country. This Court has the
power to prevent an
experiment. We may strike
down the statute which
embodies it on the ground that,
in our opinion, the measure is
arbitary, capricious or
unreaonable. We have power to
do this, because the due
process clause has been held
by he Court applicable to
matters of substantive law as
well as to matters of
procedure. But in the exercise
of this high power, we must be
ever on our guard, lest we
erect our prejudices into legal
principles. If we would guide
by the light of reason, we must
let our minds be bold. 17
Again, the concerns of the majority are
premature precisely because there are as
yet no guidelines that will direct the Court
and serve as solid basis for determining the
constitutionality of the new identification
system. The Court cannot and should not
anticipate the constitutional issues and rule
on the basis of guesswok. The guidelines
would, among others, determine the
particular biometrics method that would be
used and the specific personal data that
would be collected provide the safeguard,
(if any) and supply the details on how this
new system in supposed to work. The Court
should not jump the gun on the Executive.
III
On the issue of funding, the majority
submits that Section 6 of A.O. No. 308,
which allows the government agencies
included in the new system to obtain
funding form their respective budgets, is
unconstitutional for being an illegal transfer
of appropriations.
It is not so. The budget for the national
identification system cannot be deemed a
transfer of funds since the same is
composed of and will be implemented by
the member government agancies. Morever,
thses agencies particularly the GSIS and
SSS have been issuing some form of
identification or membership card. The
improved ID cards that will be issued under
this new system would just take place of
the old identification cards and budget-
wise, the funds that were being used to
manufacture the old ID cards, which are
usually accounted for under the "Supplies
and Materials" item of the Government
Accounting and Auditing Manual, could
now be utilized to fund the new cards.
Hence, what is envisioned is not transfer of
appropriations but a pooling of funds and
resources by the various government
agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.
MENDOZA, J., separate opinion;
My vote is to dismiss the petition in this
case.
First. I cannot find anything in the text of
Administrative Order No. 308 of the
President of the Philippines that would
warrant a declaration that it is violative of
the right of privacy. So far as I can see, all
the Administrative Orders does is
• establish an
Identification Reference
System involving the
following service
agencies of the
government:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
º Presidential
Management Staff
º National
Economic
Developemnt
Authority
º Department of
the Interior and
Local Government
º Department of
Health
º Government
Service Isurance
System
º Social Security
Office
º National
Computer Center
• create a committee,
composed of the heads
of the agencies
concerned, to draft rules
for the System;
• direct the use of the
Population Reference
Number (PRN) generated
by the National Census
and Statistics Office as
the common reference
number to link the
participating agencies
into an Identification
Reference System, and
the adoption by the
agencies of standards in
the use of biometrics
technology and
computer designs; and
• provide for the funding
of the System from the
budgets of the agencies
concerned.
Petitioner argues, however, that "the
implementation of A.O. No. 308 will mean
that each and every Filipino and resident
will have a file with the government
containing, at the very least, his PRN and
physiological biometrics such as, but not
limited to, his facial features, hand
geometry, retinal or iris pattern, DNA
pattern, fingerprints, voice characteristics,
and signature analysis."
In support of his contention, petitioner
quotes the following publication surfed
from the Internet:
The use of biometrics is the
means by which an individual
may be conclusively identified.
There are two types of
biometrics identifiers; Physical
and behavioral characteristics,
Physiological biometrics
include facial features, hand
geometry, retinal and iris
patterns. DNA, and fingerprints
characteristics include voice
characteristics and signature
analysis. 1
I do not see how from the bare provisions
of the Order, the full text of which is set
forth in the majority opinion, petitioner and
the majority can conclude that the
Identification Reference System establishes
such comprehensive personal information
dossiers that can destroy individual
privacy. So far as the Order provides, all
that is contemplated is an identification
system based on data which the
government agencies involved have already
been requiring individuals making use of
their services to give.
For example, under C.A. No. 591, §2(a) the
National Statistics Office collects "by
enumeration, sampling or other methods,
statistics and other information concerning
population . . . social and economic
institutions, and such other statistics as the
President may direct." In addition, it is in
charge of the administration of the Civil
Register, 2 which means that it keeps
records of information concerning the civil
status of persons, i.e., (a) births, (b) deaths,
(c) marriages and their annulments; (d)
legitimations, (e) adoptions, (f)
acknowledgments of natural children, (g)
naturalizations, and (h) changes of name. 3
Other statutes giving government agencies
the power to require personal information
may be cited. R.A. No. 4136, §23 gives the
Land Transportation Office the power to
require applicants for a driver's license to
give information regarding the following:
their full names, date of birth, height,
weight, sex, color of eyes, blood type,
address, and right thumbprint;4 while R.A.
No. 8239, §5 gives the Department of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Foreign Affairs the power to require
passport applicants to give information
concerning their names, place of birth, date
of birth, religious affiliation, marital status,
and citizenship.
Justice Romero, tracing the origin of
privacy to the attempt of the first man and
woman to cover their nakedness with fig
leaves, bemoans the fact that technology
and institutional pressures have threatened
our sense of privacy. On the other hand, the
majority would have none of the
Identification Reference System "to prevent
the shrinking of the right to privacy, once
regarded as "the most comprehensive of
rights and the right most valued by civilized
men."" 5 Indeed, techniques such as
fingerprinting or electronic photography in
banks have become commonplace. As has
been observed, the teaching hospital has
come to be accepted as offering madical
services that compensate for the loss of the
isolation of the sickbed; the increased
capacity of applied sciences to utilize more
and more kinds of data and the cosequent
calls for such data have weakened
traditional resistance to disclosure. As the
area of relevance, political or scientific,
expands, there is strong psychological
pressure to yield some ground of privacy. 6
But this is a fact of life to which we must
adjust, as long as the intrusion into the
domain of privacy is reasonable. In Morfe v.
Mutuc, 7 this Court dealt the coup de
grace to claims of latitudinarian scope for
the right of privacy by quoting the pungent
remark of an acute observer of the social
scene, Carmen Guerrero-Nakpil:
Privacy? What's that? There is
no precise word for it in
Filipino, and as far as I know
any Filipino dialect and there is
none because there is no need
for it. The concept and practice
of privacy are missing from
conventional Filipino life. The
Filipino believes that privacy is
an unnecessary imposition, an
eccentricity that is barely
pardonable or, at best, an
esoteric Western afterthought
smacking of legal trickery. 8
Justice Romero herself says in her
separate opinion that the word
privacy is not even in the lexicon of
Filipinos.
As to whether the right of privacy is "the
most valued right," we do well to remember
the encomiums paid as well to other
constitutional rights. For Professor
Zechariah Chafee, "The writ of habeas
corpus is "the most important human rights
provision in the fundamental law,"" 9 For
Justice Cardozo, on the other hand,
freedom of expression "is the matrix, the
indispensable condition of nearly every
other form of freedom." 10
The point is that care must be taken in
assigning values to constitutional rights for
the purpose of calibrating them on the
judicial scale, especially if this means
employing stricter standards of review for
regulations alleged to infringe certain rights
deemed to be "most valued by civilized
men.''
Indeed, the majority concedes that "the
right of privacy does not bar all incursions
into individual privacy . . . [only that such]
incursions into the right must be
accompanied by proper safeguards and
well-defined standards to prevent
11
unconstitutional invasions."   In the case of
the Identification Reference System, the
purpose is to facilitate the transaction of
business with service agencies of the
government and to prevent fraud and
misrepresentation. The personal
identification of an individual can facilitate
his treatment in any government hospital in
case of emergency. On the other hand, the
delivery of material assistance, such as free
medicines, can be protected from fraud or
misrepresentation as the absence of a data
base makes it possible for unscrupulous
individuals to obtain assistance from more
than one government agency.
Second. Thus, the issue in this case is not
really whether A.O. No. 308 violates the
right of privacy formed by emanations from
the several constitutional rights cited by the
majority. 12 The question is whether it
violates freedom of thought and of
conscience guaranteed in the following
provisions of our Bill of Rights (Art. III):
Sec. 4. No law Shall be passed
abridging the freedom of
speech, of expression, or of
the press, or the right of the
people peaceably to assemble
and petition the government
for redress of grievances.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Sec. 5. No law shall be made
respecting an establishment of
religion, or prohibiting the free
exercise thereof. The free
exercise enjoyment of religious
profession and worship,
without discrimination or
preference, shall be forever be
allowed. No religious test shall
be required for the exercise of
civil or political rights.
More specifically, the question is whether
the establishment of the Identification
Reference System will not result in the
compilation of massive dossiers on
individuals which, beyond their use for
identification, can become instruments of
thought control. So far, the next of A.O. No.
308 affords no basis for believing that the
data gathered can be used for such sinister
purpose. As already stated, nothing that is
not already being required by the
concerned agencies of those making use of
their servides is required by the Order in
question. The Order simply organizes
service agencies of the government into a
System for the purpose of facilitating the
identification of persons seeking basic
services and social security. Thus, the
whereas clauses of A.O. No. 308 state:
WHEREAS, there is a need to
provide Filipino citizens and
foreign residents with the
facility to conveniently transact
business with basic services
and social security providers
and other government
instrumentalities;
WHEREAS, this will require a
computerized system to
properly and efficiently identify
persons seeking basic services
and social security, and
reduce, if not totally eradicate,
fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and
collaborative effort among the
various basic services and
social security providing
agencies and other
government instrumentalities
is required to achieve such a
system:
The application of biometric
technology and the standardization
of computer designs can provide
service agencies with precise
identification of individuals, but what
is wrong with that?
Indeed, A.O. No. 308 is no more than a
directive to government agencies which the
President of the Philippines has issued in
his capacity as administrative head. 13 It is
not a statute. It confers no right; it imposes
no duty; it affords no protection; it creates
no office. 14 It is, as its name indicates, a
mere administrative order, the prescise
nature of which is given in the following
excerpt from the decision in the early case
of Olsen & Co. v. Herstein: 15
[It] is nothing more or less than
a command from a superior to
an inferior. It creates no
relation except between the
official who issues it and the
official who receives it. Such
orders, whether executive or
departmental, have for their
object simply the efficient and
economical administration of
the affairs of the department to
which or in which they are
issued in accordance with the
law governing the subject-
matter. They are administrative
in their nature and do not pass
beyond the limits of the
department to which they are
directed or in which they are
published, and, therefore,
create no rights in third
persons. They are based on,
and are the product of a
relationship in which power is
their source and obedience
their object. Disobedience to or
deviation from such an order
can be punished only by the
power which issued it: and, if
that power fails to administer
the corrective, then the
disobedience goes
unpunished. In that
relationship no third person or
official may intervene, not even
the court. Such orders may be
very temporary, they being
subject to instant revocation or
modification by the power
which published them. Their
very nature, as determined by
the relationship which
prodecued them, demonstrates
clearly the impossibility of any
 HUMAN RIGHTS PRELIMFULLTEXT CASES
other person enforcing them exercised "a present inhibiting effect on
except the one who created [respondents'] full expression and
them. An attempt on the part of utilization of their First Amendment rights."
the courts to enforce such In holding the case nonjusticiable, the U.S.
orders would result not only in Supreme Court, in an opinion by Chief
confusion but, substantially, in Justice Burger. said: 21
departmental anarchy also. 16
In recent years this Court has
Third. There is no basis for believing that, found in a number of cases
beyond the identification of individuals, the that constitutional violations
System will be used for illegal purposes. may arise from the deterrent or
Nor are sanctions lacking for the ''chilling," effect of
unauthorized use or disclosure of governmental regulations that
information gathered by the various fall short of a direct prohibition
agencies constituting the System. For against the exercise of First
example, as the Solicitor General points Amendment rights. [Citation of
out. C.A. No. 591. §4 penalizes the cases omitted] In none of these
unauthorized use or disclosure of data cases, however, did the chilling
furnished the NSO with a fine of not more effect arise merely from the
than P600.00 or imprisonment for not more individual's knowledge that a
than six months or both. governmental agency was
engaged in certain activities or
At all events, at this stage, it is premature to from the individual's
pass on the claim that the Identification concomitant fear that, armed
Reference System can be used for the with the fruits of those
purpose of compiling massive dossiers on activities, the agency might in
individuals that can be used to curtail basic the future take some other and
civil and political rights since, if at all, this additional action detrimental to
can only be provided in the implementing that individual. Rather, in each
rules and regulations which have yet to be of these cases, the challenged
promulgated. We have already stated that exercise of governmental
A.O. No. 308 is not a statute. Even in the power was regulatory,
case of statutes, however, where proscriptive, or compulsory in
implementing rules are necessary to put nature, and the complainant
them into effect, it has been held that an was either presently or
attack on their constitutionality would be prospectively subject to the
premature. 17 As Edgar in King Lear puts it, regulations, proscriptions, or
"Ripeness is all." 18 For, to borrow some compulsions that he was
more Shakespearean lines, challenging. . . .

The canker galls [T]hese decisions have in no

the infants of the way eroded the "established
spring principle that to entitle a
private individual to invoke the
Too oft before judicial power to determine the
their buttons be validity of executive or
disclos'd. 19 legislative action he must show
that he was sustained or is
That, more than any doctrine of immediately in danger of
constitutional law I can think of, sustaining a direct injury as the
succinctly expresses the rule on result of that action. . . .
ripeness, prematurity, and
hypothetical, speculative, or The respondents do not meet
conjectural claims. this test; [the] alleged
"chilling" effect may perhaps
Of special relevance to this case is Laird v. be seen as arising from
Tatum. 20 There, a class suit was brought respondents' perception of the
seeking declaratory and injunctive relief on system as inappropriate to the
the claim that a U.S. Army intelligence Army's role under our form of
surveillance of civilian political activity government, or as arising from
having "a potential for civil disorder" respondents' beliefs that it is
 HUMAN RIGHTS PRELIMFULLTEXT CASES
inherently dangerous for the
military to be concerned with
activities in the civilian sector,
or as arising from respondents'
less generalized yet
speculative apprehensiveness
that the Army may at some
future date misuse the
information in some way that
would cause direct harm to
respondents. Allegations of a
subjective "chill" are not an
adequate substitute for a claim
of specific present objective
harm or a threat of specific
future harm: "the federal
courts established pursuant to
Article III of the Constitution do
not render advisory
opinions." United Public
Workers v. Mitchell, 330 US 75,
89, 91 L Ed 754, 766, 67 S Ct
556 (1947).
Fourth. Given the fact that no right of
privacy is involved in this case and that any
objection to the identification Reference
System on the ground that it violates
freedom of thought is premature,
speculative, or conjectural pending the
issuance of the implementing rules, it is
clear that petitioner Blas F. Ople has no
cause of action and, therefore, no standing
to bring this action. Indeed, although he
assails A.O. No. 308 on the ground that it
violates the right of privacy, he claims no
personal injury suffered as a result of the
Order in question. Instead, he says he is
bringing this action as taxpayer, Senator,
and member of the Government Service
Insurance System.
Insofar as petitioner claims an interest as
taxpayer, it is sufficient to say that A.O. No.
308 does not involve the exercise of the
taxing or spending power of the
government.
Insofar as he purports to sue as a member
of the GSIS, neither does petitioner have an
intertest sufficient to enable him to litigate a
constitutional question. Petitioner claims
that in providing that the funds necessary
for implementing the System shall be taken
from the budgets of the concerned
agencies. A.O. No. 308 violates Art. VI,
§25(5) which. provides:
No law shall be passed
authorizing any transfer of
appropriations; however, the
President, the President of the
Senate, the Speaker of the
House of Representatives, the
Chief Justice of the Supreme
Court, and the heads of
Constitutional Commissions
may, by law, be authorized to
augment any item in the
general appropriations law for
their respective offices from
savings in other items of their
respective appropriations.
But, as the Solicitor General states:
Petitioner's argument is
anchored on two erroneous
assumptions: one, that all the
concerned agencies, including
the SSS and the GSIS, receive
budgetary support from the
national government; and two,
that the GAA is the only law
whereby public funds are
appropriated. Both
assumptions are wrong.
The SSS and GSIS do not
presently receive budgetary
support from the National
Government. They have
achieved self-supporting
status such that the
contributions of their members
are sufficient to finance their
expenses. One would be hard
pressed to find in the GAA an
appropriation of funds to the
SSS and the GSIS.
Furthermore, their respective
charters authorize the SSS and
the GSIS to disburse their
funds (Rep. Act No. 1161
[1954], as amended, Sec. 25;
Pres. Decree No. 1146 [1977],
as amended, Sec. 29) without
the need for a separate
appropriation from the
Congress.
Nor as Senator can petitioner claim
standing since no power of Congress is
alleged to have been impaired by the
Administrative Order in question. 22 As
already stated, in issuing A.O. No. 308, the
President did not exercise the legislative
power vested by the Constitution in
Congress. He acted on the basis of his own
powers as administrative head of the
government, as distinguished from his
 HUMAN RIGHTS PRELIMFULLTEXT CASES
capacity as the Executive. Dean Sinco suspend or remove the
elucidates the crucial distinction thus: officials concerned. 23

The Constitution of the G.R. No. L-14639            March 25, 1919

Philippines makes the
President not only the ZACARIAS VILLAVICENCIO, ET
executive but also the AL., petitioners,
administrative head of the vs.
government. . . . Executive JUSTO LUKBAN, ET AL., respondents.
power refers to the legal and
political function of the Alfonso Mendoza for petitioners.
President involving the City Fiscal Diaz for respondents.
exercise of discretion.
Administrative power, on the MALCOLM, J.:
other hand, concerns itself
with the work of applying The annals of juridical history fail to reveal a
policies and enforcing orders case quite as remarkable as the one which this
as determined by proper application for habeas corpus submits for
governmental organs. These decision. While hardly to be expected to be met
two functions are often with in this modern epoch of triumphant
confused by the public: but democracy, yet, after all, the cause presents no
they are distinct from each great difficulty if there is kept in the forefront of
other. The President as the our minds the basic principles of popular
executive authority has the government, and if we give expression to the
duty of supervising the paramount purpose for which the courts, as an
enforcement of laws for the independent power of such a government,
maintenance of general peace were constituted. The primary question
and public order. As is — Shall the judiciary permit a government of
administrative head, his duty is the men instead of a government of laws to be
to see that every government set up in the Philippine Islands?
office is managed and
maintained properly by the Omitting much extraneous matter, of no
persons in charge of it in moment to these proceedings, but which might
accordance with pertinent laws prove profitable reading for other departments
and regulations. of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for
. . . The power of control vested the best of all reasons, to exterminate vice,
in him by the Constitution ordered the segregated district for women of ill
makes for a strongly repute, which had been permitted for a number
centralized administrative of years in the city of Manila, closed. Between
system. It reinforces further his October 16 and October 25, 1918, the women
position as the executive of the were kept confined to their houses in the
government, enabling him to district by the police. Presumably, during this
comply more effectively with period, the city authorities quietly perfected
his constitutional duty to arrangements with the Bureau of Labor for
enforce the laws. It enables sending the women to Davao, Mindanao, as
him to fix a uniform standard laborers; with some government office for the
of a administrative eficiency use of the coastguard
and to check the official cutters Corregidor and Negros, and with the
conduct of his agents. The Constabulary for a guard of soldiers. At any
decisions of all the officers rate, about midnight of October 25, the police,
within his department are acting pursuant to orders from the chief of
subject to his power of police, Anton Hohmann and the Mayor of the
revision, either on his own city of Manila, Justo Lukban, descended upon
motion or on the appeal of the houses, hustled some 170 inmates into
some individual who might patrol wagons, and placed them aboard the
deem himself aggrieved by the steamers that awaited their arrival. The women
action of an administrative were given no opportunity to collect their
official. In case of serious belongings, and apparently were under the
dereliction of duty, he may impression that they were being taken to a
police station for an investigation. They had no
 HUMAN RIGHTS PRELIMFULLTEXT CASES
knowledge that they were destined for a life in
Mindanao. They had not been asked if they
wished to depart from that region and had
neither directly nor indirectly given their
consent to the deportation. The involuntary
guests were received on board the steamers
by a representative of the Bureau of Labor and
a detachment of Constabulary soldiers. The
two steamers with their unwilling passengers
sailed for Davao during the night of October 25.
The vessels reached their destination at Davao
on October 29. The women were landed and
receipted for as laborers by Francisco Sales,
provincial governor of Davao, and by Feliciano
Yñigo and Rafael Castillo. The governor and
the hacendero Yñigo, who appear as parties in
the case, had no previous notification that the
women were prostitutes who had been
expelled from the city of Manila. The further
happenings to these women and the serious
charges growing out of alleged ill-treatment are
of public interest, but are not essential to the
disposition of this case. Suffice it to say,
generally, that some of the women married,
others assumed more or less clandestine
relations with men, others went to work in
different capacities, others assumed a life
unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the
time the Corregidor and the Negros were
putting in to Davao, the attorney for the
relatives and friends of a considerable number
of the deportees presented an application
for habeas corpus to a member of the Supreme
Court. Subsequently, the application, through
stipulation of the parties, was made to include
all of the women who were sent away from
Manila to Davao and, as the same questions
concerned them all, the application will be
considered as including them. The application
set forth the salient facts, which need not be
repeated, and alleged that the women were
illegally restrained of their liberty by Justo
Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila,
and by certain unknown parties. The writ was
made returnable before the full court. The city
fiscal appeared for the respondents, Lukban
and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that
the writ should not be granted because the
petitioners were not proper parties, because
the action should have been begun in the Court
of First Instance for Davao, Department of
Mindanao and Sulu, because the respondents
did not have any of the women under their
custody or control, and because their
jurisdiction did not extend beyond the
boundaries of the city of Manila. According to
an exhibit attached to the answer of the fiscal,
the 170 women were destined to be laborers,
at good salaries, on the haciendas of Yñigo
and Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of
the court, that these women had been sent out
of Manila without their consent. The court
awarded the writ, in an order of November 4,
that directed Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the
city of Manila, Francisco Sales, governor of the
province of Davao, and Feliciano Yñigo,
an hacendero of Davao, to bring before the
court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the
women had returned to Manila at their own
expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of
the Supreme Court sitting as commissioners.
On the day named in the order, December 2nd,
1918, none of the persons in whose behalf the
writ was issued were produced in court by the
respondents. It has been shown that three of
those who had been able to come back to
Manila through their own efforts, were notified
by the police and the secret service to appear
before the court. The fiscal appeared, repeated
the facts more comprehensively, reiterated the
stand taken by him when pleading to the
original petition copied a telegram from the
Mayor of the city of Manila to the provincial
governor of Davao and the answer thereto, and
telegrams that had passed between the
Director of Labor and the attorney for that
Bureau then in Davao, and offered certain
affidavits showing that the women were
contained with their life in Mindanao and did
not wish to return to Manila. Respondents
Sales answered alleging that it was not
possible to fulfill the order of the Supreme
Court because the women had never been
under his control, because they were at liberty
in the Province of Davao, and because they
had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he
did not have any of the women under his
control and that therefore it was impossible for
him to obey the mandate. The court, after due
deliberation, on December 10, 1918,
promulgated a second order, which related that
the respondents had not complied with the
original order to the satisfaction of the court nor
explained their failure to do so, and therefore
directed that those of the women not in Manila
be brought before the court by respondents
Lukban, Hohmann, Sales, and Yñigo on
January 13, 1919, unless the women should, in
written statements voluntarily made before the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
judge of first instance of Davao or the clerk of
that court, renounce the right, or unless the
respondents should demonstrate some other
legal motives that made compliance
impossible. It was further stated that the
question of whether the respondents were in
contempt of court would later be decided and
the reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony
including that of a number of the women, of
certain detectives and policemen, and of the
provincial governor of Davao, was taken before
the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First
Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents
technically presented before the Court the
women who had returned to the city through
their own efforts and eight others who had
been brought to Manila by the respondents.
Attorneys for the respondents, by their returns,
once again recounted the facts and further
endeavored to account for all of the persons
involved in the habeas corpus. In substance, it
was stated that the respondents, through their
representatives and agents, had succeeded in
bringing from Davao with their consent eight
women; that eighty-one women were found in
Davao who, on notice that if they desired they
could return to Manila, transportation fee,
renounced the right through sworn statements;
that fifty-nine had already returned to Manila by
other means, and that despite all efforts to find
them twenty-six could not be located. Both
counsel for petitioners and the city fiscal were
permitted to submit memoranda. The first
formally asked the court to find Justo Lukban,
Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of
the police force of the city of Manila, Feliciano
Yñigo, an hacendero of Davao, Modesto
Joaquin, the attorney for the Bureau of Labor,
and Anacleto Diaz, fiscal of the city of Manila,
in contempt of court. The city fiscal requested
that the replica al memorandum de los
recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be
struck from the record.
In the second order, the court promised to give
the reasons for granting the writ of habeas
corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be
recalled — these one hundred and seventy
women were isolated from society, and then at
night, without their consent and without any
opportunity to consult with friends or to defend
their rights, were forcibly hustled on board
steamers for transportation to regions
unknown. Despite the feeble attempt to prove
that the women left voluntarily and gladly, that
such was not the case is shown by the mere
fact that the presence of the police and the
constabulary was deemed necessary and that
these officers of the law chose the shades of
night to cloak their secret and stealthy acts.
Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to
resolve the question — By authority of what
law did the Mayor and the Chief of Police
presume to act in deporting by duress these
persons from Manila to another distant locality
within the Philippine Islands? We turn to the
statutes and we find —
Alien prostitutes can be expelled from the
Philippine Islands in conformity with an Act of
congress. The Governor-General can order the
eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine
Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice
of any person who is a common prostitute. Act
No. 899 authorizes the return of any citizen of
the United States, who may have been
convicted of vagrancy, to the homeland. New
York and other States have statutes providing
for the commitment to the House of Refuge of
women convicted of being common prostitutes.
Always a law! Even when the health authorities
compel vaccination, or establish a quarantine,
or place a leprous person in the Culion leper
colony, it is done pursuant to some law or
order. But one can search in vain for any law,
order, or regulation, which even hints at the
right of the Mayor of the city of Manila or the
chief of police of that city to force citizens of the
Philippine Islands — and these women despite
their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties
as are other citizens — to change their
domicile from Manila to another locality. On the
contrary, Philippine penal law specifically
punishes any public officer who, not being
expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the
privilege of domicile is deemed so important as
to be found in the Bill of Rights of the
Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so
 HUMAN RIGHTS PRELIMFULLTEXT CASES
elementary in nature as not even to require a
constitutional sanction. Even the Governor-
General of the Philippine Islands, even the
President of the United States, who has often
been said to exercise more power than any
king or potentate, has no such arbitrary
prerogative, either inherent or express. Much
less, therefore, has the executive of a
municipality, who acts within a sphere of
delegated powers. If the mayor and the chief of
police could, at their mere behest or even for
the most praiseworthy of motives, render the
liberty of the citizen so insecure, then the
presidents and chiefs of police of one thousand
other municipalities of the Philippines have the
same privilege. If these officials can take to
themselves such power, then any other official
can do the same. And if any official can
exercise the power, then all persons would
have just as much right to do so. And if a
prostitute could be sent against her wishes and
under no law from one locality to another within
the country, then officialdom can hold the same
club over the head of any citizen.
Law defines power. Centuries ago Magna
Charta decreed that — "No freeman shall be
taken, or imprisoned, or be disseized of his
freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor
condemn him, but by lawful judgment of his
peers or by the law of the land. We will sell to
no man, we will not deny or defer to any man
either justice or right." (Magna Charta, 9 Hen.,
111, 1225, Cap. 29; 1 eng. stat. at Large, 7.)
No official, no matter how high, is above the
law. The courts are the forum which functionate
to safeguard individual liberty and to punish
official transgressors. "The law," said Justice
Miller, delivering the opinion of the Supreme
Court of the United States, "is the only
supreme power in our system of government,
and every man who by accepting office
participates in its functions is only the more
strongly bound to submit to that supremacy,
and to observe the limitations which it imposes
upon the exercise of the authority which it
gives." (U.S. vs. Lee [1882], 106 U.S., 196,
220.) "The very idea," said Justice Matthews of
the same high tribunal in another case, "that
one man may be compelled to hold his life, or
the means of living, or any material right
essential to the enjoyment of life, at the mere
will of another, seems to be intolerable in any
country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins
[1886], 118 U.S., 356, 370.) All this explains
the motive in issuing the writ of habeas corpus,
and makes clear why we said in the very
beginning that the primary question was
whether the courts should permit a government
of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims
of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal
action, and (3) habeas corpus.
The first is an optional but rather slow process
by which the aggrieved party may recoup
money damages. It may still rest with the
parties in interest to pursue such an action, but
it was never intended effectively and promptly
to meet any such situation as that now before
us.
As to criminal responsibility, it is true that the
Penal Code in force in these Islands provides:
Any public officer not thereunto
authorized by law or by regulations of a
general character in force in the
Philippines who shall banish any person
to a place more than two hundred
kilometers distant from his domicile,
except it be by virtue of the judgment of
a court, shall be punished by a fine of
not less than three hundred and twenty-
five and not more than three thousand
two hundred and fifty pesetas.
Any public officer not thereunto
expressly authorized by law or by
regulation of a general character in force
in the Philippines who shall compel any
person to change his domicile or
residence shall suffer the penalty of
destierro and a fine of not less than six
hundred and twenty-five and not more
than six thousand two hundred and
fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due
investigation, the proper prosecuting officers
find that any public officer has violated this
provision of law, these prosecutors will institute
and press a criminal prosecution just as
vigorously as they have defended the same
official in this action. Nevertheless, that the act
may be a crime and that the persons guilty
thereof can be proceeded against, is no bar to
the instant proceedings. To quote the words of
Judge Cooley in a case which will later be
referred to — "It would be a monstrous
anomaly in the law if to an application by one
unlawfully confined, ta be restored to his
liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might
be continued indefinitely until the guilty party
was tried and punished therefor by the slow
 HUMAN RIGHTS PRELIMFULLTEXT CASES
process of criminal procedure." (In the matter
of Jackson [1867], 15 Mich., 416, 434.) The
writ of habeas corpus was devised and exists
as a speedy and effectual remedy to relieve
persons from unlawful restraint, and as the
best and only sufficient defense of personal
freedom. Any further rights of the parties are
left untouched by decision on the writ, whose
principal purpose is to set the individual at
liberty.
Granted that habeas corpus is the proper
remedy, respondents have raised three specific
objections to its issuance in this instance. The
fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that
the person in question are not restrained of
their liberty by respondents. It was finally
suggested that the jurisdiction of the Mayor and
the chief of police of the city of Manila only
extends to the city limits and that perforce they
could not bring the women from Davao.
The first defense was not presented with any
vigor by counsel. The petitioners were relatives
and friends of the deportees. The way the
expulsion was conducted by the city officials
made it impossible for the women to sign a
petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons
in their behalf. (Code of Criminal Procedure,
sec. 78; Code of Civil Procedure, sec. 527.)
The law, in its zealous regard for personal
liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there
is evidence that within the court's jurisdiction a
person is unjustly imprisoned or restrained of
his liberty, though no application be made
therefor. (Code of Criminal Procedure, sec.
93.) Petitioners had standing in court.
The fiscal next contended that the writ should
have been asked for in the Court of First
Instance of Davao or should have been made
returnable before that court. It is a general rule
of good practice that, to avoid unnecessary
expense and inconvenience, petitions
for habeas corpus should be presented to the
nearest judge of the court of first instance. But
this is not a hard and fast rule. The writ
of habeas corpus may be granted by the
Supreme Court or any judge thereof enforcible
anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil
Procedure, sec. 526.) Whether the writ shall be
made returnable before the Supreme Court or
before an inferior court rests in the discretion of
the Supreme Court and is dependent on the
particular circumstances. In this instance it was
not shown that the Court of First Instance of
Davao was in session, or that the women had
any means by which to advance their plea
before that court. On the other hand, it was
shown that the petitioners with their attorneys,
and the two original respondents with their
attorney, were in Manila; it was shown that the
case involved parties situated in different parts
of the Islands; it was shown that the women
might still be imprisoned or restrained of their
liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken
cognizance of and decided immediately by the
appellate court. The failure of the superior court
to consider the application and then to grant
the writ would have amounted to a denial of the
benefits of the writ.
The last argument of the fiscal is more
plausible and more difficult to meet. When the
writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no
restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and
the chief of police did not extend beyond the
city limits. At first blush, this is a tenable
position. On closer examination, acceptance of
such dictum is found to be perversive of the
first principles of the writ of habeas corpus.
A prime specification of an application for a writ
of habeas corpus is restraint of liberty. The
essential object and purpose of the writ
of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient. The
forcible taking of these women from Manila by
officials of that city, who handed them over to
other parties, who deposited them in a distant
region, deprived these women of freedom of
locomotion just as effectively as if they had
been imprisoned. Placed in Davao without
either money or personal belongings, they
were prevented from exercising the liberty of
going when and where they pleased. The
restraint of liberty which began in Manila
continued until the aggrieved parties were
returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement
with such a defense would mean. The chief
executive of any municipality in the Philippines
could forcibly and illegally take a private citizen
and place him beyond the boundaries of the
municipality, and then, when called upon to
defend his official action, could calmly fold his
hands and claim that the person was under no
restraint and that he, the official, had no
jurisdiction over this other municipality. We
 HUMAN RIGHTS PRELIMFULLTEXT CASES
believe the true principle should be that, if the
respondent is within the jurisdiction of the court
and has it in his power to obey the order of the
court and thus to undo the wrong that he has
inflicted, he should be compelled to do so.
Even if the party to whom the writ is addressed
has illegally parted with the custody of a person
before the application for the writ is no reason
why the writ should not issue. If the mayor and
the chief of police, acting under no authority of
law, could deport these women from the city of
Manila to Davao, the same officials must
necessarily have the same means to return
them from Davao to Manila. The respondents,
within the reach of process, may not be
permitted to restrain a fellow citizen of her
liberty by forcing her to change her domicile
and to avow the act with impunity in the courts,
while the person who has lost her birthright of
liberty has no effective recourse. The great writ
of liberty may not thus be easily evaded.
It must be that some such question has
heretofore been presented to the courts for
decision. Nevertheless, strange as it may
seem, a close examination of the authorities
fails to reveal any analogous case. Certain
decisions of respectable courts are however
very persuasive in nature.
A question came before the Supreme Court of
the State of Michigan at an early date as to
whether or not a writ of habeas corpus would
issue from the Supreme Court to a person
within the jurisdiction of the State to bring into
the State a minor child under guardianship in
the State, who has been and continues to be
detained in another State. The membership of
the Michigan Supreme Court at this time was
notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court
was equally divided. Campbell, J., with whom
concurred Martin, C. J., held that the writ
should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers,
with whom concurred Christiancy, J., held that
the writ should issue. Since the opinion of
Justice Campbell was predicated to a large
extent on his conception of the English
decisions, and since, as will hereafter appear,
the English courts have taken a contrary view,
only the following eloquent passages from the
opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to
doubt the power of this court to issue the
present writ on the petition which was
laid before us. . . .
It would be strange indeed if, at this late
day, after the eulogiums of six centuries
and a half have been expended upon
the Magna Charta, and rivers of blood
shed for its establishment; after its many
confirmations, until Coke could declare
in his speech on the petition of right that
"Magna Charta was such a fellow that
he will have no sovereign," and after the
extension of its benefits and securities
by the petition of right, bill of rights
and habeas corpus acts, it should now
be discovered that evasion of that great
clause for the protection of personal
liberty, which is the life and soul of the
whole instrument, is so easy as is
claimed here. If it is so, it is important
that it be determined without delay, that
the legislature may apply the proper
remedy, as I can not doubt they would,
on the subject being brought to their
notice. . . .
The second proposition — that the
statutory provisions are confined to the
case of imprisonment within the
state — seems to me to be based upon
a misconception as to the source of our
jurisdiction. It was never the case in
England that the court of king's bench
derived its jurisdiction to issue and
enforce this writ from the statute.
Statutes were not passed to give the
right, but to compel the observance of
rights which existed. . . .
The important fact to be observed in
regard to the mode of procedure upon
this writ is, that it is directed to and
served upon, not the person confined,
but his jailor. It does not reach the
former except through the latter. The
officer or person who serves it does not
unbar the prison doors, and set the
prisoner free, but the court relieves him
by compelling the oppressor to release
his constraint. The whole force of the
writ is spent upon the respondent, and if
he fails to obey it, the means to be
resorted to for the purposes of
compulsion are fine and imprisonment.
This is the ordinary mode of affording
relief, and if any other means are
resorted to, they are only auxiliary to
those which are usual. The place of
confinement is, therefore, not important
to the relief, if the guilty party is within
reach of process, so that by the power
of the court he can be compelled to
release his grasp. The difficulty of
affording redress is not increased by the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
confinement being beyond the limits of
the state, except as greater distance
may affect it. The important question is,
where the power of control exercised?
And I am aware of no other remedy. (In
the matter of Jackson [1867], 15 Mich.,
416.)
The opinion of Judge Cooley has since been
accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac.
Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)
The English courts have given careful
consideration to the subject. Thus, a child had
been taken out of English by the respondent. A
writ of habeas corpus was issued by the
Queen's Bench Division upon the application of
the mother and her husband directing the
defendant to produce the child. The judge at
chambers gave defendant until a certain date
to produce the child, but he did not do so. His
return stated that the child before the issuance
of the writ had been handed over by him to
another; that it was no longer in his custody or
control, and that it was impossible for him to
obey the writ. He was found in contempt of
court. On appeal, the court, through Lord
Esher, M. R., said:
A writ of habeas corpus was ordered to
issue, and was issued on January 22.
That writ commanded the defendant to
have the body of the child before a
judge in chambers at the Royal Courts
of Justice immediately after the receipt
of the writ, together with the cause of
her being taken and detained. That is a
command to bring the child before the
judge and must be obeyed, unless
some lawful reason can be shown to
excuse the nonproduction of the child. If
it could be shown that by reason of his
having lawfully parted with the
possession of the child before the
issuing of the writ, the defendant had no
longer power to produce the child, that
might be an answer; but in the absence
of any lawful reason he is bound to
produce the child, and, if he does not,
he is in contempt of the Court for not
obeying the writ without lawful excuse.
Many efforts have been made in
argument to shift the question of
contempt to some anterior period for the
purpose of showing that what was done
at some time prior to the writ cannot be
a contempt. But the question is not as to
what was done before the issue of the
writ. The question is whether there has
been a contempt in disobeying the writ it
was issued by not producing the child in
obedience to its commands. (The
Queen vs. Bernardo [1889], 23 Q. B. D.,
305. See also to the same effect the
Irish case of In re Matthews, 12 Ir. Com.
Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is
also of interest. A habeas corpus was directed
to the defendant to have before the circuit court
of the District of Columbia three colored
persons, with the cause of their detention.
Davis, in his return to the writ, stated on oath
that he had purchased the negroes as slaves in
the city of Washington; that, as he believed,
they were removed beyond the District of
Columbia before the service of the writ
of habeas corpus, and that they were then
beyond his control and out of his custody. The
evidence tended to show that Davis had
removed the negroes because he suspected
they would apply for a writ of habeas corpus.
The court held the return to be evasive and
insufficient, and that Davis was bound to
produce the negroes, and Davis being present
in court, and refusing to produce them, ordered
that he be committed to the custody of the
marshall until he should produce the negroes,
or be otherwise discharged in due course of
law. The court afterwards ordered that Davis
be released upon the production of two of the
negroes, for one of the negroes had run away
and been lodged in jail in Maryland. Davis
produced the two negroes on the last day of
the term. (United States vs. Davis [1839], 5
Cranch C.C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U.S., 624;
Church on Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and
authority, that no one of the defense offered by
the respondents constituted a legitimate bar to
the granting of the writ of habeas corpus.
There remains to be considered whether the
respondent complied with the two orders of the
Supreme Court awarding the writ of habeas
corpus, and if it be found that they did not,
whether the contempt should be punished or
be taken as purged.
The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named
in the writ before the court on December 2,
1918. The order was dated November 4, 1918.
The respondents were thus given ample time,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
practically one month, to comply with the writ.
As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November
before sending a telegram to the provincial
governor of Davao. According to the response
of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao
women who desired to return to Manila, but
who should not be permitted to do so because
of having contracted debts. The half-hearted
effort naturally resulted in none of the parties in
question being brought before the court on the
day named.
For the respondents to have fulfilled the court's
order, three optional courses were open: (1)
They could have produced the bodies of the
persons according to the command of the writ;
or (2) they could have shown by affidavit that
on account of sickness or infirmity those
persons could not safely be brought before the
court; or (3) they could have presented
affidavits to show that the parties in question or
their attorney waived the right to be present.
(Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in
whose behalf the writ was granted; they did not
show impossibility of performance; and they did
not present writings that waived the right to be
present by those interested. Instead a few
stereotyped affidavits purporting to show that
the women were contended with their life in
Davao, some of which have since been
repudiated by the signers, were appended to
the return. That through ordinary diligence a
considerable number of the women, at least
sixty, could have been brought back to Manila
is demonstrated to be found in the municipality
of Davao, and that about this number either
returned at their own expense or were
produced at the second hearing by the
respondents.
The court, at the time the return to its first order
was made, would have been warranted
summarily in finding the respondents guilty of
contempt of court, and in sending them to jail
until they obeyed the order. Their excuses for
the non-production of the persons were far
from sufficient. The, authorities cited herein
pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas
corpus writ must be fulfilled. For example, in
Gossage's case, supra, the Magistrate in
referring to an earlier decision of the Court,
said: "We thought that, having brought about
that state of things by his own illegal act, he
must take the consequences; and we said that
he was bound to use every effort to get the
child back; that he must do much more than
write letters for the purpose; that he must
advertise in America, and even if necessary
himself go after the child, and do everything
that mortal man could do in the matter; and that
the court would only accept clear proof of an
absolute impossibility by way of excuse." In
other words, the return did not show that every
possible effort to produce the women was
made by the respondents. That the court
forebore at this time to take drastic action was
because it did not wish to see presented to the
public gaze the spectacle of a clash between
executive officials and the judiciary, and
because it desired to give the respondents
another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court,
the respondents appear to have become more
zealous and to have shown a better spirit.
Agents were dispatched to Mindanao, placards
were posted, the constabulary and the
municipal police joined in rounding up the
women, and a steamer with free transportation
to Manila was provided. While charges and
counter-charges in such a bitterly contested
case are to be expected, and while a critical
reading of the record might reveal a failure of
literal fulfillment with our mandate, we come to
conclude that there is a substantial compliance
with it. Our finding to this effect may be
influenced somewhat by our sincere desire to
see this unhappy incident finally closed. If any
wrong is now being perpetrated in Davao, it
should receive an executive investigation. If
any particular individual is still restrained of her
liberty, it can be made the object of
separate habeas corpus proceedings.
Since the writ has already been granted, and
since we find a substantial compliance with it,
nothing further in this connection remains to be
done.
The attorney for the petitioners asks that we
find in contempt of court Justo Lukban, Mayor
of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez,
and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin,
the attorney for the Bureau of Labor, Feliciano
Yñigo, an hacendero of Davao, and Anacleto
Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court
should be exercised on the preservative and
not on the vindictive principle. Only
occasionally should the court invoke its
inherent power in order to retain that respect
without which the administration of justice must
falter or fail. Nevertheless when one is
commanded to produce a certain person and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of
contempt, and must order him either
imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a
writ of habeas corpus when he has power to do
so, is a contempt committed in the face of the
court. (Ex parte Sterns [1888], 77 Cal., 156; In
re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind,
and with judicial regard for human
imperfections, we cannot say that any of the
respondents, with the possible exception of the
first named, has flatly disobeyed the court by
acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax,
and Joaquin only followed the orders of their
chiefs, and while, under the law of public
officers, this does not exonerate them entirely,
it is nevertheless a powerful mitigating
circumstance. The hacendero Yñigo appears
to have been drawn into the case through a
misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz,
would seem to have done no more than to fulfill
his duty as the legal representative of the city
government. Finding him innocent of any
disrespect to the court, his counter-motion to
strike from the record the memorandum of
attorney for the petitioners, which brings him
into this undesirable position, must be granted.
When all is said and done, as far as this record
discloses, the official who was primarily
responsible for the unlawful deportation, who
ordered the police to accomplish the same,
who made arrangements for the steamers and
the constabulary, who conducted the
negotiations with the Bureau of Labor, and who
later, as the head of the city government, had it
within his power to facilitate the return of the
unfortunate women to Manila, was Justo
Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was
commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by
the court was only tardily and reluctantly
acknowledged.
It would be possible to turn to the provisions of
section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the
writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in
addition to deal with him as for a contempt.
Some members of the court are inclined to this
stern view. It would also be possible to find that
since respondent Lukban did comply
substantially with the second order of the court,
he has purged his contempt of the first order.
Some members of the court are inclined to this
merciful view. Between the two extremes
appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of
the court tended to belittle and embarrass the
administration of justice to such an extent that
his later activity may be considered only as
extenuating his conduct. A nominal fine will at
once command such respect without being
unduly oppressive — such an amount is P100.
In resume — as before stated, no further
action on the writ of habeas corpus is
necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz
are found not to be in contempt of court.
Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of
the Supreme Court within five days the sum of
one hundred pesos (P100). The motion of the
fiscal of the city of Manila to strike from the
record the Replica al Memorandum de los
Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So
ordered.
In concluding this tedious and disagreeable
task, may we not be permitted to express the
hope that this decision may serve to bulwark
the fortifications of an orderly government of
laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avanceña and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the
opinion of the majority in the decision of
the habeas corpus proceeding against Justo
Lukban, the mayor of this city.
There is nothing in the record that shows the
motive which impelled Mayor Lukban to oblige
a great number of women of various ages,
inmates of the houses of prostitution situated in
Gardenia Street, district of Sampaloc, to
change their residence.
We know no express law, regulation, or
ordinance which clearly prohibits the opening
of public houses of prostitution, as those in the
said Gardenia Street, Sampaloc. For this
 HUMAN RIGHTS PRELIMFULLTEXT CASES
reason, when more than one hundred and fifty
women were assembled and placed aboard a
steamer and transported to Davao, considering
that the existence of the said houses of
prostitution has been tolerated for so long a
time, it is undeniable that the mayor of the city,
in proceeding in the manner shown, acted
without authority of any legal provision which
constitutes an exception to the laws
guaranteeing the liberty and the individual
rights of the residents of the city of Manila.
We do not believe in the pomp and
obstentation of force displayed by the police in
complying with the order of the mayor of the
city; neither do we believe in the necessity of
taking them to the distant district of Davao. The
said governmental authority, in carrying out his
intention to suppress the segregated district or
the community formed by those women in
Gardenia Street, could have obliged the said
women to return to their former residences in
this city or in the provinces, without the
necessity of transporting them to Mindanao;
hence the said official is obliged to bring back
the women who are still in Davao so that they
may return to the places in which they lived
prior to their becoming inmates of certain
houses in Gardenia Street.
As regards the manner whereby the mayor
complied with the orders of this court, we do
not find any apparent disobedience and
marked absence of respect in the steps taken
by the mayor of the city and his subordinates, if
we take into account the difficulties
encountered in bringing the said women who
were free at Davao and presenting them before
this court within the time fixed, inasmuch as it
does not appear that the said women were
living together in a given place. It was not
because they were really detained, but
because on the first days there were no houses
in which they could live with a relative
independent from one another, and as a proof
that they were free a number of them returned
to Manila and the others succeeded in living
separate from their companions who continued
living together.
To determine whether or not the mayor acted
with a good purpose and legal object and
whether he has acted in good or bad faith in
proceeding to dissolve the said community of
prostitutes and to oblige them to change their
domicile, it is necessary to consider not only
the rights and interests of the said women and
especially of the patrons who have been
directing and conducting such a reproachable
enterprise and shameful business in one of the
suburbs of this city, but also the rights and
interests of the very numerous people of
Manila where relatively a few transients
accidentally and for some days reside, the
inhabitants thereof being more than three
hundred thousand (300,000) who can not, with
indifference and without repugnance, live in the
same place with so many unfortunate women
dedicated to prostitution.
If the material and moral interests of the
community as well as the demands of social
morality are to be taken into account, it is not
possible to sustain that it is legal and
permissible to establish a house of pandering
or prostitution in the midst of an enlightened
population, for, although there were no positive
laws prohibiting the existence of such houses
within a district of Manila, the dictates of
common sense and dictates of conscience of
its inhabitants are sufficient to warrant the
public administration, acting correctly, in
exercising the inevitable duty of ordering the
closing and abandonment of a house of
prostitution ostensibly open to the public, and
of obliging the inmates thereof to leave it,
although such a house is inhabited by its true
owner who invokes in his behalf the protection
of the constitutional law guaranteeing his
liberty, his individual rights, and his right to
property.
A cholera patient, a leper, or any other person
affected by a known contagious disease cannot
invoke in his favor the constitutional law which
guarantees his liberty and individual rights,
should the administrative authority order his
hospitalization, reclusion, or concentration in a
certain island or distant point in order to free
from contagious the great majority of the
inhabitants of the country who fortunately do
not have such diseases. The same reasons
exist or stand good with respect to the
unfortunate women dedicated to prostitution,
and such reasons become stronger because
the first persons named have contracted their
diseases without their knowledge and even
against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of
living and spontaneously accepted all its
consequences, knowing positively that their
constant intercourse with men of all classes,
notwithstanding the cleanliness and precaution
which they are wont to adopt, gives way to the
spread or multiplication of the disease known
as syphilis, a venereal disease, which,
although it constitutes a secret disease among
men and women, is still prejudicial to the
human species in the same degree, scope, and
seriousness as cholera, tuberculosis, leprosy,
pest, typhoid, and other contagious diseases
 HUMAN RIGHTS PRELIMFULLTEXT CASES
which produce great mortality and very serious
prejudice to poor humanity.
If a young woman, instead of engaging in an
occupation or works suitable to her sex, which
can give her sufficient remuneration for her
subsistence, prefers to put herself under the
will of another woman who is usually older than
she is and who is the manager or owner of a
house of prostitution, or spontaneously
dedicates herself to this shameful profession, it
is undeniable that she voluntarily and with her
own knowledge renounces her liberty and
individual rights guaranteed by the
Constitution, because it is evident that she can
not join the society of decent women nor can
she expect to get the same respect that is due
to the latter, nor is it possible for her to live
within the community or society with the same
liberty and rights enjoyed by every citizen.
Considering her dishonorable conduct and life,
she should therefore be comprised within that
class which is always subject to the police and
sanitary regulations conducive to the
maintenance of public decency and morality
and to the conservation of public health, and
for this reason it should not permitted that the
unfortunate women dedicated to prostitution
evade the just orders and resolutions adopted
by the administrative authorities.
It is regrettable that unnecessary rigor was
employed against the said poor women, but
those who have been worrying so much about
the prejudice resulting from a governmental
measure, which being a very drastic remedy
may be considered arbitrary, have failed to
consider with due reflection the interests of the
inhabitants of this city in general and
particularly the duties and responsibilities
weighing upon the authorities which administer
and govern it; they have forgotten that many of
those who criticize and censure the mayor are
fathers of families and are in duty bound to
take care of their children.
For the foregoing reasons, we reach the
conclusion that when the petitioners, because
of the abnormal life they assumed, were
obliged to change their residence not by a
private citizen but by the mayor of the city who
is directly responsible for the conservation of
public health and social morality, the latter
could take the step he had taken, availing
himself of the services of the police in good
faith and only with the purpose of protecting the
immense majority of the population from the
social evils and diseases which the houses of
prostitution situated in Gardenia Street have
been producing, which houses have been
constituting for years a true center for the
propagation of general diseases and other evils
derived therefrom. Hence, in ordering the
dissolution and abandonment of the said
houses of prostitution and the change of the
domicile of the inmates thereof, the mayor did
not in bad faith violate the constitutional laws
which guarantees the liberty and the individual
rights of every Filipino, inasmuch as the
women petitioners do not absolutely enjoy the
said liberty and rights, the exercise of which
they have voluntarily renounced in exchange
for the free practice of their shameful
profession.
In very highly advanced and civilized countries,
there have been adopted by the administrative
authorities similar measures, more or less
rigorous, respecting prostitutes, considering
them prejudicial to the people, although it is
true that in the execution of such measures
more humane and less drastic
procedures, fortiter in re et suaviter in forma,
have been adopted, but such procedures have
always had in view the ultimate object of the
Government for the sake of the community,
that is, putting an end to the living together in a
certain place of women dedicated to
prostitution and changing their domicile, with
the problematical hope that they adopt another
manner of living which is better and more
useful to themselves and to society.
In view of the foregoing remarks, we should
hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the
said women who are at present found in
Davao, and who desire to return to their former
respective residences, not in Gardenia Street,
Sampaloc District, with the exception of the
prostitutes who should expressly make known
to the clerk of court their preference to reside in
Davao, which manifestation must be made
under oath. This resolution must be transmitted
to the mayor within the shortest time possible
for its due compliance. The costs shall be
charged de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion
of the majority in the decision rendered in these
proceedings, with respect to the finding as to
the importance of the contempt committed,
according to the same decision, by Justo
Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal
fine of P100.
In the said decision, it is said:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The first order, it will be recalled,
directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yñigo to
present the persons named in the writ
before the court on December 2, 1918.
The order was dated November 4, 1918.
The respondents were thus given ample
time, practically one month, to comply
with the writ. As far as the record
disclosed, the mayor of the city of
Manila waited until the 21st of
November before sending a telegram to
the provincial governor of Davao.
According to the response of the
Attorney for the Bureau of Labor to the
telegram of his chief, there were then in
Davao women who desired to return to
Manila, but who should not be permitted
to do so because of having contracted
debts. The half-hearted effort naturally
resulted in none of the parties in
question being brought before the court
on the day named.
In accordance with section 87 of General
Orders No. 58, as said in the same decision,
the respondents, for the purpose of complying
with the order of the court, could have, (1)
produced the bodies of the persons according
to the command of the writ; (2) shown by
affidavits that on account of sickness or
infirmity the said women could not safely be
brought before this court; and (3) presented
affidavits to show that the parties in question or
their lawyers waived their right to be present.
According to the same decision, the said
respondents ". . . did not produce the bodies of
the persons in whose behalf the writ was
granted; did not show impossibility of
performance; and did not present writings, that
waived the right to be present by those
interested. Instead, a few stereotyped affidavits
purporting to show that the women were
contented with their life in Davao, some of
which have since been repudiated by the
signers, were appended to the return. That
through ordinary diligence a considerable
number of the women, at least sixty, could
have been brought back to Manila is
demonstrated by the fact that during this time
they were easily to be found in the municipality
of Davao, and that about this number either
returned at their own expense or were
produced at the second hearing by the
respondents."
The majority opinion also recognized that,
"That court, at the time the return to its first
order was made, would have been warranted
summarily in finding the respondent guilty of
contempt of court, and in sending them to jail
until they obeyed the order. Their excuses for
the non production of the persons were far
from sufficient." To corroborate this, the
majority decision cites the case of the
Queen vs. Barnardo, Gossage's Case ([1890],
24 Q. B. D., 283) and added "that the return did
not show that every possible effort to produce
the women was made by the respondents."
When the said return by the respondents was
made to this court in banc and the case
discussed, my opinion was that Mayor Lukban
should have been immediately punished for
contempt. Nevertheless, a second order
referred to in the decision was issued on
December 10, 1918, requiring the respondents
to produce before the court, on January 13,
1919, the women who were not in Manila,
unless they could show that it was impossible
to comply with the said order on the two
grounds previously mentioned. With respect to
this second order, the same decision has the
following to say:
In response to the second order of the
court, the respondents appear to have
become more zealous and to have
shown a better spirit. Agents were
dispatched to Mindanao, placards were
posted, the constabulary and the
municipal police joined in rounding up
the women, and a steamer with free
transportation to Manila was provided.
While charges and countercharges in
such a bitterly contested case are to be
expected, and while a critical reading of
the record might reveal a failure of literal
fulfillment with our mandate, we come to
conclude that there is a substantial
compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila,
Justo Lukban, let 17 days elapse from the date
of the issuance of the first order on November
4th till the 21st of the same month before
taking the first step for compliance with the
mandate of the said order; he waited till the
21st of November, as the decision says, before
he sent a telegram to the provincial governor o
f Davao and naturally this half-hearted effort,
as is so qualified in the decision, resulted in
that none of the women appeared before this
court on December 2nd. Thus, the said order
was not complied with, and in addition to this
noncompliance there was the circumstances
that seven of the said women having returned
to Manila at their own expense before the said
second day of December and being in the
antechamber of the court room, which fact was
 HUMAN RIGHTS PRELIMFULLTEXT CASES
known to Chief of Police Hohmann, who was
then present at the trial and to the attorney for
the respondents, were not produced before the
court by the respondents nor did the latter
show any effort to present them, in spite of the
fact that their attention was called to this
particular by the undersigned.
The result of the said second order was, as is
said in the same decision, that the
respondents, on January 13th, the day fixed for
the protection of the women before this court,
presented technically the seven (7) women
above-mentioned who had returned to the city
at their own expense and the other eight (8)
women whom the respondents themselves
brought to Manila, alleging moreover that their
agents and subordinates succeeded in bringing
them from Davao with their consent; that in
Davao they found eighty-one (81) women who,
when asked if they desired to return to Manila
with free transportation, renounced such a
right, as is shown in the affidavits presented by
the respondents to this effect; that, through
other means, fifty-nine (59) women have
already returned to Manila, but notwithstanding
the efforts made to find them it was not
possible to locate the whereabouts of twenty-
six (26) of them. Thus, in short, out of the one
hundred and eighty-one (181) women who, as
has been previously said, have been illegally
detained by Mayor Lukban and Chief of Police
Hohmann and transported to Davao against
their will, only eight (8) have been brought to
Manila and presented before this court by the
respondents in compliance with the said two
orders. Fifty-nine (59) of them have returned to
Manila through other means not furnished by
the respondents, twenty-six of whom were
brought by the attorney for the petitioners,
Mendoza, on his return from Davao. The said
attorney paid out of his own pocket the
transportation of the said twenty-six women.
Adding to these numbers the other seven (7)
women who returned to this city at their own
expense before January 13 we have a total of
sixty-six (66), which evidently proves, on the
one hand, the falsity of the allegation by the
respondents in their first answer at the trial of
December 2, 1918, giving as one of the
reasons for their inability to present any of the
said women that the latter were content with
their life in Mindanao and did not desire to
return to Manila; and, on the other hand, that
the respondents, especially the first named,
that is Mayor Justo Lukban, who acted as chief
and principal in all that refers to the compliance
with the orders issued by this court, could bring
before December 2nd, the date of the first
hearing of the case, as well as before January
13th, the date fixed for the compliance with the
second order, if not the seventy-four (74)
women already indicated, at least a great
number of them, or at least sixty (60) of them,
as is said in the majority decision, inasmuch as
the said respondent could count upon the aid
of the Constabulary forces and the municipal
police, and had transportation facilities for the
purpose. But the said respondent mayor
brought only eight (8) of the women before this
court on January 13th. This fact can not, in my
judgment, with due respect to the majority
opinion, justify the conclusion that the said
respondent has substantially complied with the
second order of this court, but on the other
hand demonstrates that he had not complied
with the mandate of this court in its first and
second orders; that neither of the said orders
has been complied with by the respondent
Justo Lukban, Mayor of the city of Manila, who
is, according to the majority decision,
principally responsible for the contempt, to
which conclusion I agree. The conduct of the
said respondent with respect to the second
order confirms the contempt committed by non-
compliance with the first order and constitutes
a new contempt because of non-compliance
with the second, because of the production of
only eight (8) of the one hundred and eighty-
one (181) women who have been illegally
detained by virtue of his order and transported
to Davao against their will, committing the
twenty-six (26) women who could not be found
in Davao, demonstrates in my opinion that,
notwithstanding the nature of the case which
deals with the remedy of habeas corpus,
presented by the petitioners and involving the
question whether they should or not be granted
their liberty, the respondent has not given due
attention to the same nor has he made any
effort to comply with the second order. In other
words, he has disobeyed the said two orders;
has despised the authority of this court; has
failed to give the respect due to justice; and
lastly, he has created and placed obstacles to
the administration of justice in the said habeas
corpus proceeding, thus preventing, because
of his notorious disobedience, the resolution of
the said proceeding with the promptness which
the nature of the same required.
Contempt of court has been defined as
a despising of the authority, justice, or
dignity of the court; and he is guilty of
contempt whose conduct is such as
tends to bring the authority and
administration of the law into disrespect
or disregard. . . ." (Ruling Case Law, vol.
6, p. 488.)
It is a general principle that a
disobedience of any valid order of the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
court constitutes contempt, unless the
defendant is unable to comply therewith.
(Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to
evade the judgment of the court, or to
obstruct or attempt to obstruct the
service of legal process. If a person
hinders or prevents the service of
process by deceiving the officer or
circumventing him by any means, the
result is the same as though he had
obstructed by some direct means.
(Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat
incongruous to speak, as the courts
often do, of enforcing respect for the law
and for the means it has provided in
civilized communities for establishing
justice, since true respect never comes
in that way, it is apparent nevertheless
that the power to enforce decorum in the
courts and obedience to their orders and
just measures is so essentially a part of
the life of the courts that it would be
difficult to conceive of their usefulness or
efficiency as existing without it.
Therefore it may be said generally that
where due respect for the courts as
ministers of the law is wanting, a
necessity arises for the use of
compulsion, not, however, so much to
excite individual respect as to compel
obedience or to remove an unlawful or
unwarranted interference with the
administration of justice. (Ruling Case
Law, vol. 6, p. 487.)
The power to punish for contempt is as
old as the law itself, and has been
exercised from the earliest times. In
England it has been exerted when the
contempt consisted of scandalizing the
sovereign or his ministers, the law-
making power, or the courts. In the
American states the power to punish for
contempt, so far as the executive
department and the ministers of state
are concerned, and in some degree so
far as the legislative department is
concerned, is obsolete, but it has been
almost universally preserved so far as
regards the judicial department. The
power which the courts have of
vindicating their own authority is a
necessary incident to every court of
justice, whether of record or not; and the
authority for issuing attachments in a
proper case for contempts out of court, it
has been declared, stands upon the
same immemorial usage as supports the
whole fabric of the common law. . . .
(Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this
court which have been disobeyed; the loss of
the prestige of the authority of the court which
issued the said orders, which loss might have
been caused by noncompliance with the same
orders on the part of the respondent Justo
Lukban; the damages which might have been
suffered by some of the women illegally
detained, in view of the fact that they were not
brought to Manila by the respondents to be
presented before the court and of the further
fact that some of them were obliged to come to
this city at their own expense while still others
were brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the
transportation of the said women; and the
delay which was necessarily incurred in the
resolution of the petition interposed by the said
petitioners and which was due to the fact that
the said orders were not opportunately and
duly obeyed and complied with, are
circumstances which should be taken into
account in imposing upon the respondent Justo
Lukban the penalty corresponding to the
contempt committed by him, a penalty which,
according to section 236 of the Code of Civil
Procedure, should consist of a fine not
exceeding P1,000 or imprisonment not
exceeding months, or both such fine and
imprisonment. In the imposition of the penalty,
there should also be taken into consideration
the special circumstance that the contempt was
committed by a public authority, the mayor of
the city of Manila, the first executive authority
of the city, and consequently, the person
obliged to be the first in giving an example of
obedience and respect for the laws and the
valid and just orders of the duly constituted
authorities as well as for the orders emanating
from the courts of justice, and in giving help
and aid to the said courts in order that justice
may be administered with promptness and
rectitude.
I believe, therefore, that instead of the fine of
one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a
fine of five hundred pesos (P500), and all the
costs should be charged against him. Lastly, I
believe it to be my duty to state here that the
records of this proceeding should be
transmitted to the Attorney-General in order
that, after a study of the same and deduction
from the testimony which he may deem
necessary, and the proper transmittal of the
same to the fiscal of the city of Manila and to
the provincial fiscal of Davao, both the latter
 HUMAN RIGHTS PRELIMFULLTEXT CASES
shall present the corresponding informations
for the prosecution and punishment of the
crimes which have been committed on the
occasion when the illegal detention of the
women was carried into effect by Mayor Justo
Lukban of the city of Manila and Chief of Police
Anton Hohmann, and also of those crimes
committed by reason of the same detention
and while the women were in Davao. This will
be one of the means whereby the just hope
expressed in the majority decision will be
realized, that is, that in the Philippine Islands
there should exist a government of laws and
not a government of men and that this decision
may serve to bulwark the fortifications of an
orderly Government of laws and to protect
individual liberty from illegal encroachments.
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R.
MARCOS, FERDINAND R. MARCOS. JR.,
IRENE M. ARANETA, IMEE M. MANOTOC,
TOMAS MANOTOC, GREGORIO ARANETA,
PACIFICO E. MARCOS, NICANOR YÑIGUEZ
and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented
by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS,
CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO,
FIDEL RAMOS, RENATO DE VILLA, in their
capacity as Secretary of Foreign Affairs,
Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of
National Defense and Chief of Staff,
respectively, respondents.
RESOLUTION
 
EN BANC:
In its decision dated September 15,1989, the
Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the
President did not act arbitrarily or with grave
abuse of discretion in determining that the
return of former President Marcos and his
family at the present time and under present
circumstances pose a threat to national interest
and welfare and in prohibiting their return to the
Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:
In the interest of the safety of
those who will take the death of
Mr. Marcos in widely and
passionately conflicting ways,
and for the tranquility of the state
and order of society, the remains
of Ferdinand E. Marcos will not
be allowed to be brought to our
country until such time as the
government, be it under this
administration or the succeeding
one, shall otherwise decide.
[Motion for Reconsideration, p. 1;
Rollo, p, 443.]
On October 2, 1989, a Motion for
Reconsideration was filed by petitioners,
raising the following major arguments:
1. to bar former President Marcos and his
family from returning to the Philippines is to
deny them not only the inherent right of citizens
to return to their country of birth but also the
protection of the Constitution and all of the
rights guaranteed to Filipinos under the
Constitution;
2. the President has no power to bar a Filipino
from his own country; if she has, she had
exercised it arbitrarily; and
3. there is no basis for barring the return of the
family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its
decision, order respondents to issue the
necessary travel documents to enable Mrs.
Imelda R. Marcos, Ferdinand R. Marcos, Jr.,
Irene M. Araneta, Imee M. Manotoc, Tommy
Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from
implementing President Aquino's decision to
bar the return of the remains of Mr. Marcos,
and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration,
the Solicitor General argued that the motion for
reconsideration is moot and academic as to the
deceased Mr. Marcos. Moreover, he asserts
that "the 'formal' rights being invoked by the
Marcoses under the label 'right to return',
including the label 'return of Marcos' remains,
is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses'
incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he
prays that the Motion for Reconsideration be
denied for lack of merit.
We deny the motion for reconsideration.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
1. It must be emphasized that as in all motions vested in a President of the
for reconsideration, the burden is upon the United States of America." In
movants, petitioner herein, to show that there Alexander Hamilton's widely
are compelling reasons to reconsider the accepted view, this statement
decision of the Court. cannot be read as mere
shorthand for the specific
2. After a thorough consideration of the matters executive authorizations that
raised in the motion for reconsideration, the follow it in [sections] 2 and 3.
Court is of the view that no compelling reasons Hamilton stressed the difference
have been established by petitioners to warrant between the sweeping language
a reconsideration of the Court's decision. of article II, section 1, and the
conditional language of article I,
The death of Mr. Marcos, although it may be [section] 1: "All legislative
viewed as a supervening event, has not Powers herein granted shall be
changed the factual scenario under which the vested in a Congress of the
Court's decision was rendered. The threats to United States . . ." Hamilton
the government, to which the return of the submitted that "[t]he [article III
Marcoses has been viewed to provide a enumeration [in sections 2 and 31
catalytic effect, have not been shown to have ought therefore to be considered,
ceased. On the contrary, instead of erasing as intended merely to specify the
fears as to the destabilization that will be principal articles implied in the
caused by the return of the Marcoses, Mrs. definition of execution power;
Marcos reinforced the basis for the decision to leaving the rest to flow from the
bar their return when she called President general grant of that power,
Aquino "illegal," claiming that it is Mr. Marcos, interpreted in confomity with other
not Mrs. Aquino, who is the "legal" President of parts of the Constitution...
the Philippines, and declared that the matter
"should be brought to all the courts of the In Myers v. United States, the
world." [Comment, p. 1; Philippine Star, Supreme Court — accepted
October 4, 1989.] Hamilton's proposition,
concluding that the federal
3. Contrary to petitioners' view, it cannot be executive, unlike the Congress,
denied that the President, upon whom could exercise power from
executive power is vested, has unstated sources not enumerated, so long
residual powers which are implied from the as not forbidden by the
grant of executive power and which are constitutional text: the executive
necessary for her to comply with her duties power was given in general
under the Constitution. The powers of the terms, strengthened by specific
President are not limited to what are expressly terms where emphasis was
enumerated in the article on the Executive regarded as appropriate, and was
Department and in scattered provisions of the limited by direct expressions
Constitution. This is so, notwithstanding the where limitation was needed. . ."
avowed intent of the members of the The language of Chief Justice
Constitutional Commission of 1986 to limit the Taft in Myers makes clear that
powers of the President as a reaction to the the constitutional concept of
abuses under the regime of Mr. Marcos, for the inherent power is not a synonym
result was a limitation of specific power of the for power without limit; rather, the
President, particularly those relating to the concept suggests only that not all
commander-in-chief clause, but not a powers granted in the
diminution of the general grant of executive Constitution are themselves
power. exhausted by internal
enumeration, so that, within a
That the President has powers other than sphere properly regarded as one
those expressly stated in the Constitution is of "executive' power, authority is
nothing new. This is recognized under the U.S. implied unless there or elsewhere
Constitution from which we have patterned the expressly limited. [TRIBE,
distribution of governmental powers among AMERICAN CONSTITUTIONAL
three (3) separate branches. LAW 158-159 (1978).]

Article II, [section] 1, provides that And neither can we subscribe to the view that a
"The Executive Power shall be recognition of the President's implied or
 HUMAN RIGHTS PRELIMFULLTEXT CASES
residual powers is tantamount to setting the
stage for another dictatorship. Despite
petitioners' strained analogy, the residual
powers of the President under the Constitution
should not be confused with the power of the
President under the 1973 Constitution to
legislate pursuant to Amendment No. 6 which
provides:
Whenever in the judgment of the
President (Prime Minister), there
exists a grave emergency or a
threat or imminence thereof, or
whenever the interim Batasang
Pambansa or the regular National
Assembly fails or is unable to act
adequately on any matter for any
reason that in his judgment
requires immediate action, he
may, in order to meet the
exigency, issue the necessary
decrees, orders, or letters of
instruction, which shall form part
of the law of the land,
There is no similarity between the residual
powers of the President under the 1987
Constitution and the power of the President
under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No.
6 refers to an express grant of power. It is not
implied. Then, Amendment No. 6 refers to a
grant to the President of the specific power of
legislation.
4. Among the duties of the President under the
Constitution, in compliance with his (or her)
oath of office, is to protect and promote the
interest and welfare of the people. Her decision
to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the
present time and under present circumstances
is in compliance with this bounden duty. In the
absence of a clear showing that she had acted
with arbitrariness or with grave abuse of
discretion in arriving at this decision, the Court
will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY
the Motion for Reconsideration for lack of
merit."
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my
vote for granting the petition. The death of
Marcos has not plunged the nation into
paroxysms of grief as the so-called "loyalists"
had hoped. By and large, it has been met with
only passing interest if not outright indifference
from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is
only an unpleasant memory, not a bolt of
lightning to whip the blood.
This only shows that if he was at all a threat to
the national security when he was already
moribund that feeble threat has died with him.
As the government stresses, he has been
reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver
is not even regarded as a symbol of this or that
or whatever except by his fanatical followers. It
is only a dead body waiting to be interred in
this country.
This is a tempest in a teapot. We have more
important things to do than debating over a
corpse that deserves no kinder fate than
dissolution and oblivion. I say let it be brought
home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for
Reconsideration:
I find no reason to deviate from the dissenting
opinion I have already expressed.
Firstly, the former President, although already
dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no
longer a human being, has ceased to have
rights. For instance, our Revised Penal Code
prohibits the commission of libel against a
deceased individual. And even if we were to
assume the non- existence anymore of his
human rights what about the human rights of
his widow and the other members of his
family?
Secondly, up to now, the alleged threats to
national security have remained unproved and
consequently, unpersuasive. Our Armed
Forces can easily control any possible uprising
or political and military destabilization. In fact,
the converse appears to be nearer the truth,
that is, if we do not allow the remains to come,
more trouble may be expected.
Thirdly, reconciliation can proceed at a much
faster pace if the petition for the return is
granted. To refuse the request can mean a
hardening of resistance against the well-
intentioned aim of the administration. Upon the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
other hand, to grant the petition may well
soften the hearts of the oppositionists; paving
the way for a united citizenry.
Finally, the entire world will surely applaud our
government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not
strained." Surely, compassion is the better part
of government. Remove mercy, and you
remove the best reason against civil strife,
which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as
one great man has put it, the question will no
longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E.
Marcos, which supervened after decision in this
case had been rendered, was pre-empted and
foreseen in my original dissenting opinion.
There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die
and be buried in this country." I have only to
add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr.
Marcos the first two (2) rights, i.e. to return to
and die in this country, The remaining right of
this Filipino that cries out for vindication at this
late hour is the right to be buried in this
country. Will the respondents be allowed to
complete the circle of denying the constitutional
and human right of Mr. Marcos to travel which,
as stated in my dissenting opinion, includes the
right to return to, die and be buried in this
country? The answer should be in the negative
if the Constitution is to still prevail; the answer
should be in the negative if we are to avoid the
completely indefensible act of denying a
Filipino the last right to blend his mortal
remains with a few square feet of earth in the
treasured land of his birth.
Those who would deny this Filipino the only
constitutional and human right that can be
accorded him now say that the constitutional
and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered
the country. This is the most irrelevant
argument that can be raised at this time. For,
our democracy is built on the fundamental
assumption (so we believe) that the
Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as
long as he is a Filipino.
It is said that to accord this Filipino the right to
be buried in this country would pose a serious
threat to national security and public safety.
What threat? As pointed out in my dissenting
opinion, the second cogent and decisive
proposition in this case is that respondents
have not presented any "hard evidence"
(factual bases) or convincing proof of such
threat. "All we have are general conclusions of
national security and public safety' in
avoidance of a specific, demandable and
enforceable constitutional and basic human
right to return." Recent events have, to my
mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not
pose a serious threat to national security, the
situation cannot be any worse with a dead
Marcos returning. For, a dead Marcos will
return to be buried into mother earth, where
there are no protests, "demos", or even
dissents, where the rule that reigns, in the
language of Mr. Justice Jackson in Barnette is
the "unanimity of the graveyard."
It is said that, while a dead Marcos has been
rendered impotent to threaten national security,
his supporters would pose that threat to
national security. This argument is untenable
as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and
order, with Marcos deprived of his right to
burial in this country. On the other hand, if the
remains of Mr. Marcos are brought to the
country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise
potent argument—so conducive to mass
protests and even violence—that their Idol has
been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form,
has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In
the first place, one cannot overlook that the
right of Mr. Marcos, as a Filipino, to be buried
in this country, is asserted not for the first time
after his death. It was vigorously asserted long
before his death. But, more importantly, the
right of every Filipino to be buried in his
country, is part of a continuing right that starts
from birth and ends only on the day he is finally
laid to rest in his country.
This dissenting opinion does not pretend to
deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in
this country, but I submit that these conditions
must, as a fundamental postulate, recognize
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the right of the man, as a Filipino, to be buried
in this country NOW.
The majority resolution, in effect, bans Mr.
Marcos' burial in this country now. Without in
any way affecting my respect and regard for
my brethren and sisters in the majority, I am
deeply concerned and greatly disturbed that,
with their decision banning a dead Marcos from
burial in this country, they have passed an
opportunity to defuse a constitutional crisis
that, in my humble assessment, threatens to
ignite an already divided nation, Regrettably,
they have ignored the constitutional dimension
of the problem rooted in the ageless and finest
tradition of our people for respect and
deference to the dead. What predictably
follows will be a continuing strife, among our
people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the
respondents to allow the immediate return and
burial in the Republic of the Philippines of
former President Ferdinand E. Marcos, subject
to such conditions as the Philippine
government may impose in the interest of
peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja
vu, the shoe being on the other foot, yet, as I
stated before, I can not allow personal
emotions to soften my "hardened impartiality"
and deny, as a consequence, the rights of the
ex-President's bereaved to bury his remains in
his homeland, and for them to return from exile.
As I had, then, voted to grant the petition, so do
I vote to grant reconsideration.
I have gone to lengths to locate in the four
comers of the Constitution, by direct grant or by
implication, the President's supposed "residual"
power to forbid citizens from entering the
motherland reiterated in the resolution of the
majority. I have found none. I am not agreed,
that:
3. Contrary to petitioners view, it
cannot be denied that the
President, upon whom executive
power is vested, has unstated
residual powers which are implied
from the grant of executive power
and which are necessary for her
to comply with her duties under
the Constitution. The powers of
the President are not limited to
what are expressly enumerated in
the article on the Executive
Department and in scattered
provisions of the Constitution.
This, notwithstanding the avowed
intent of the members of the
Constitutional Commission of
1986 to limit the powers of the
President as a reaction to the
abuses under the regime of Mr.
Marcos, for the result was a
limitation of specific powers of the
President, particularly those
relating to the commander-in-
chief clause, but not a diminution
of the general grant of executive
power.
It is a nice word game, but it is nothing else.
For, if the Constitution has imposed limitations
on specific powers of the President, it
has, a fortiori, prescribed a diminution of
executive power. The Charter says that the
right may only be restricted by: (1) a court
order; or (2) by fiat of law. Had the fundamental
law intended a presidential imprimatur, it would
have said so. It would have also completed the
symmetry: judicial, congressional, and
executive restraints on the right. No amount of
presumed residual executive power can amend
the Charter.
It is well to note that the Bill of Rights stands
primarily, a limitation not only against
legislative encroachments on individual
liberties, but more so, against presidential
intrusions. And especially so, because the
President is the caretaker of the military
establishment that has, several times over,
been unkind to part of the population it has also
sworn to protect.
That "[t]he threats to the government, to which
the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown
to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The
military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose
a threat to national security. And apparently,
the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President
Corazon Aquino as an illegitimate President,
does not, so I submit, reinforce alleged fears of
a massive destabilization awaiting the nation.
The military has said over and over that
Marcos followers are not capable of successful
destabilization effort. And only this morning
(October 27, 1989), media reported the
assurances given to foreign investors by no
less than the President, of the political and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
economic stability of the nation, as well as the
Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr.
Marcos. My personal impressions, however,
are beside the point. I reiterate that the
President has no power to deny requests of
Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their
just deserts here too. And let the matter rest.
Separate Opinions
CRUZ, J., dissenting:
Nothing important has happened to change my
vote for granting the petition. The death of
Marcos has not plunged the nation into
paroxysms of grief as the so-called "loyalists"
had hoped. By and large, it has been met with
only passing interest if not outright indifference
from the people. Clearly, the discredited
dictator is in death no El Cid. Marcos dead is
only an unpleasant memory, not a bolt of
lightning to whip the blood.
This only shows that if he was at all a threat to
the national security when he was already
moribund that feeble threat has died with him.
As the government stresses, he has been
reduced to a non-person (which makes me
wonder why it is still afraid of him). His cadaver
is not even regarded as a symbol of this or that
or whatever except by his fanatical followers. It
is only a dead body waiting to be interred in
this country.
This is a tempest in a teapot. We have more
important things to do than debating over a
corpse that deserves no kinder fate than
dissolution and oblivion. I say let it be brought
home and buried deep and let us be done with
it forever.
PARAS, J., dissenting on the Motion for
Reconsideration:
I find no reason to deviate from the dissenting
opinion I have already expressed.
Firstly, the former President, although already
dead, is still entitled to certain rights. It is not
correct to say that a dead man, since he is no
longer a human being, has ceased to have
rights. For instance, our Revised Penal Code
prohibits the commission of libel against a
deceased individual. And even if we were to
assume the non- existence anymore of his
human rights what about the human rights of
his widow and the other members of his
family?
Secondly, up to now, the alleged threats to
national security have remained unproved and
consequently, unpersuasive. Our Armed
Forces can easily control any possible uprising
or political and military destabilization. In fact,
the converse appears to be nearer the truth,
that is, if we do not allow the remains to come,
more trouble may be expected.
Thirdly, reconciliation can proceed at a much
faster pace if the petition for the return is
granted. To refuse the request can mean a
hardening of resistance against the well-
intentioned aim of the administration. Upon the
other hand, to grant the petition may well
soften the hearts of the oppositionists; paving
the way for a united citizenry.
Finally, the entire world will surely applaud our
government's act of mercy. As Shakespeare
once wrote "the quality of mercy is not
strained." Surely, compassion is the better part
of government. Remove mercy, and you
remove the best reason against civil strife,
which if not abated can turn our country into a
mainstream of fiery dissent and in the end, as
one great man has put it, the question will no
longer be what is right, but what is left.
PADILLA, J., dissenting:
The death of former President Ferdinand E.
Marcos, which supervened after decision in this
case had been rendered, was pre-empted and
foreseen in my original dissenting opinion.
There I said that the first cogent and decisive
proposition in this case is that "Mr. Marcos is
a Filipino and, as such, entitled to return to, die
and be buried in this country." I have only to
add a few statements to that dissenting
opinion.
Respondents have succeeded in denying Mr.
Marcos the first two (2) rights, i.e. to return to
and die in this country, The remaining right of
this Filipino that cries out for vindication at this
late hour is the right to be buried in this
country. Will the respondents be allowed to
complete the circle of denying the constitutional
and human right of Mr. Marcos to travel which,
as stated in my dissenting opinion, includes the
right to return to, die and be buried in this
country? The answer should be in the negative
if the Constitution is to still prevail; the answer
should be in the negative if we are to avoid the
completely indefensible act of denying a
Filipino the last right to blend his mortal
 HUMAN RIGHTS PRELIMFULLTEXT CASES
remains with a few square feet of earth in the
treasured land of his birth.
Those who would deny this Filipino the only
constitutional and human right that can be
accorded him now say that the constitutional
and human right to be buried in this country
would apply to any Filipino, except Mr. Marcos,
because he was a dictator and he plundered
the country. This is the most irrelevant
argument that can be raised at this time. For,
our democracy is built on the fundamental
assumption (so we believe) that the
Constitution and all its guarantees apply
to all Filipinos, whether dictator or pauper,
learned or ignorant, religious or agnostic as
long as he is a Filipino.
It is said that to accord this Filipino the right to
be buried in this country would pose a serious
threat to national security and public safety.
What threat? As pointed out in my dissenting
opinion, the second cogent and decisive
proposition in this case is that respondents
have not presented any "hard evidence"
(factual bases) or convincing proof of such
threat. "All we have are general conclusions of
national security and public safety' in
avoidance of a specific, demandable and
enforceable constitutional and basic human
right to return." Recent events have, to my
mind, served to confirm the validity of such
dissenting statement.
If a live Marcos returning to this country did not
pose a serious threat to national security, the
situation cannot be any worse with a dead
Marcos returning. For, a dead Marcos will
return to be buried into mother earth, where
there are no protests, "demos", or even
dissents, where the rule that reigns, in the
language of Mr. Justice Jackson in Barnette is
the "unanimity of the graveyard."
It is said that, while a dead Marcos has been
rendered impotent to threaten national security,
his supporters would pose that threat to
national security. This argument is untenable
as it is without merit. As I see it, Marcos'
supporters pose a greater threat to peace and
order, with Marcos deprived of his right to
burial in this country. On the other hand, if the
remains of Mr. Marcos are brought to the
country and allowed the burial to which he is
constitutionally and humanly entitled, Marcos'
supporters would be deprived of an otherwise
potent argument—so conducive to mass
protests and even violence—that their Idol has
been cruelly denied the right to be buried in his
homeland.
It is also said that Mr. Marcos, in cadaver form,
has no constitutional or human rights, to speak
of. This contention entirely begs the issue. In
the first place, one cannot overlook that the
right of Mr. Marcos, as a Filipino, to be buried
in this country, is asserted not for the first time
after his death. It was vigorously asserted long
before his death. But, more importantly, the
right of every Filipino to be buried in his
country, is part of a continuing right that starts
from birth and ends only on the day he is finally
laid to rest in his country.
This dissenting opinion does not pretend to
deny the Philippine government the right to lay
down conditions for the burial of Mr. Marcos in
this country, but I submit that these conditions
must, as a fundamental postulate, recognize
the right of the man, as a Filipino, to be buried
in this country NOW.
The majority resolution, in effect, bans Mr.
Marcos' burial in this country now. Without in
any way affecting my respect and regard for
my brethren and sisters in the majority, I am
deeply concerned and greatly disturbed that,
with their decision banning a dead Marcos from
burial in this country, they have passed an
opportunity to defuse a constitutional crisis
that, in my humble assessment, threatens to
ignite an already divided nation, Regrettably,
they have ignored the constitutional dimension
of the problem rooted in the ageless and finest
tradition of our people for respect and
deference to the dead. What predictably
follows will be a continuing strife, among our
people, of unending hatred, recriminations and
retaliations. God save this country!
My vote is for this Court to ORDER the
respondents to allow the immediate return and
burial in the Republic of the Philippines of
former President Ferdinand E. Marcos, subject
to such conditions as the Philippine
government may impose in the interest of
peace and order.
SARMIENTO, J., Dissenting:
The case has curious trappings of a deja
vu, the shoe being on the other foot, yet, as I
stated before, I can not allow personal
emotions to soften my "hardened impartiality"
and deny, as a consequence, the rights of the
ex-President's bereaved to bury his remains in
his homeland, and for them to return from exile.
As I had, then, voted to grant the petition, so do
I vote to grant reconsideration.
I have gone to lengths to locate in the four
comers of the Constitution, by direct grant or by
 HUMAN RIGHTS PRELIMFULLTEXT CASES
implication, the President's supposed "residual"
power to forbid citizens from entering the
motherland reiterated in the resolution of the
majority. I have found none. I am not agreed,
that:
3. Contrary to petitioners view, it
cannot be denied that the
President, upon whom executive
power is vested, has unstated
residual powers which are implied
from the grant of executive power
and which are necessary for her
to comply with her duties under
the Constitution. The powers of
the President are not limited to
what are expressly enumerated in
the article on the Executive
Department and in scattered
provisions of the Constitution.
This, notwithstanding the avowed
intent of the members of the
Constitutional Commission of
1986 to limit the powers of the
President as a reaction to the
abuses under the regime of Mr.
Marcos, for the result was a
limitation of specific powers of the
President, particularly those
relating to the commander-in-
chief clause, but not a diminution
of the general grant of executive
power.
It is a nice word game, but it is nothing else.
For, if the Constitution has imposed limitations
on specific powers of the President, it has,
a fortiori, prescribed a diminution of executive
power. The Charter says that the right may
only be restricted by: (1) a court order; or (2) by
fiat of law. Had the fundamental law intended a
presidential imprimatur, it would have said so.
It would have also completed the symmetry:
judicial, congressional, and executive restraints
on the right. No amount of presumed residual
executive power can amend the Charter.
It is well to note that the Bill of Rights stands
primarily, a limitation not only against
legislative encroachments on individual
liberties, but more so, against presidential
intrusions. And especially so, because the
President is the caretaker of the military
establishment that has, several times over,
been unkind to part of the population it has also
sworn to protect.
That "[t]he threats to the government, to which
the return of the Marcoses has been viewed to
provide a catalytic effect, have not been shown
to have ceased" (Res., 3) is the realm of
conjecture, speculation, and imagination. The
military has shown no hard evidence that "the
return of the Marcoses" would indeed interpose
a threat to national security. And apparently,
the majority itself is not convinced ("has been
viewed...").
That Mrs. Marcos has referred to President
Corazon Aquino as an illegitimate President,
does not, so I submit, reinforce alleged fears of
a massive destabilization awaiting the nation.
The military has said over and over that
Marcos followers are not capable of successful
destabilization effort. And only this morning
(October 27, 1989), media reported the
assurances given to foreign investors by no
less than the President, of the political and
economic stability of the nation, as well as the
Government's capability to quell forces that
menace the gains of EDSA.
I have no eulogies to say on the passing of Mr.
Marcos. My personal impressions, however,
are beside the point. I reiterate that the
President has no power to deny requests of
Marcos relatives to bury Marcos in his
homeland. As for the former, let them get their
just deserts here too. And let the matter rest.
G.R. No. 95770 March 1, 1993
ROEL EBRALINAG, EMILY EBRALINAG,
represented by their parents MR. & MRS.
LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father AMOS
TANTOG; JEMILOYAO & JOEL OYAO,
represented by their parents MR. & MRS.
ELIEZER OYAO; JANETH DIAMOS &
JEREMIAS DIAMOS, represented by parents
MR. & MRS. GODOFREDO DIAMOS; SARA
OSTIA & JONATHAN OSTIA, represented by
their parents MR. & MRS. FAUTO OSTIA;
IRVIN SEQUINO & RENAN SEQUINO,
represented by their parents MR. & MRS.
LYDIO SEQUINO; NAPTHALE TANACAO,
represented by his parents MR. & MRS.
MANUEL TANACAO; PRECILA PINO,
represented by her parents MR. & MRS.
FELIPE PINO; MARICRIS ALFAR, RUWINA
ALFAR, represented by their parents MR. &
MRS. HERMINIGILDO ALFAR;
FREDESMINDA ALFAR & GUMERSINDO
ALFAR, represented by their parents
ABDON ALFAR; ALBERTO ALFAR &
ARISTIO ALFAR, represented by their
parents MR. & MRS. GENEROSO ALFAR;
MARTINO VILLAR, represented by his
parents MR. & MRS. GENARO VILLAR;
PERGEBRIEL GUINITA & CHAREN
GUINITA, represented by their parents MR.
& MRS. CESAR GUINITA; ALVIN DOOP,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
represented by his parents MR. & MRS.
LEONIDES DOOP; RHILYN LAUDE,
represented by her parents MR. & MRS.
RENE LAUDE; LEOREMINDA MONARES,
represented by her parents, MR. & MRS.
FLORENCIO MONARES; MERCY
MONTECILLO, represented by her parents
MR. & MRS. MANUEL MONTECILLO;
ROBERTO TANGAHA, represented by his
parent ILUMINADA TANGAHA; EVELYN,
MARIA & FLORA TANGAHA, represented by
their parents MR. & MRS. ALBERTO
TANGAHA; MAXIMO EBRALINAG,
represented by his parents, MR. & MRS.
PAQUITO EBRALINAG; JUTA CUMON,
GIDEON CUMON & JONATHAN CUMON,
represented by their father RAFAEL
CUMON; EVIE LUMAKANG & JUNAR
LUMAKANG, represented by their parents
MR. & MRS. LUMAKANG; EMILIO
SARSOZO, PAZ AMOR SARSOZO & IGNA
MARIE SARSOZO, represented by their
parents MR. & MRS. VIRGILIO SARSOZO;
MICHAEL JOSEPH & HENRY JOSEPH,
represented by parent ANNIE JOSEPH;
EMERSON TABLASON & MASTERLOU
TABLASON, represented by their parent
EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU, respondent.
G.R. No. 95887 March 1, 1993
MAY AMOLO, represented by her parents
MR. & MRS. ISAIAS AMOLO; REDFORD
ALSADO, JOEBERT ALSADO & RUDYARD
ALSADO, represented by their parents MR.
& MRS. ABELARDO ALSADO; NELIA
ALSADO, REU ALSADO & LILIBETH
ALSADO, represented by their parents MR.
& MRS. ROLANDO ALSADO; SUZETTE
NAPOLES, represented by her parents
ISMAILITO NAPOLES & OPHELIA
NAPOLES; JESICA CARMELOTES,
represented by her parents MR. & MRS.
SERGIO CARMELOTES; BABY JEAN
MACAPAS, represented by her parents MR.
& MRS. TORIBIO MACAPAS; GERALDINE
ALSADO, represented by her parents MR. &
MRS. JOEL ALSADO; RAQUEL DEMOTOR
& LEAH DEMOTOR, represented by their
parents MR. & MRS. LEONARDO
DEMOTOR; JURELL VILLA & MELONEY
VILLA, represented by their parents MR. &
MRS. JOVENIANO VILLA; JONELL HOPE
MAHINAY, MARY GRACE MAHINAY and
MAGDALENE MAHINAY, represented by
their parents MR. & MRS. FELIX MAHINAY;
JONALYN ANTIOLA and JERWIN ANTIOLA,
represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA
CONCEPCION CABUYAO, represented by
her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO
represented by her parents MANUEL
TURNO and VEVENCIA TURNO; SOLOMON
PALATULON, SALMERO PALATULON and
ROSALINDA PALATULON, represented by
their parents MARTILLANO PALATULON
and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU and ANTONIO A.
SANGUTAN, respondents.
Felino M. Ganal for petitioners.
The Solicitor General for respondents.
GRIÑO-AQUINO, J.:
These two special civil actions for
certiorari, Mandamus and Prohibition were
consolidated because they raise essentially
the same issue: whether school children
who are members or a religious sect known
as Jehovah's Witnesses may be expelled
from school (both public and private), for
refusing, on account of their religious
beliefs, to take part in the flag ceremony
which includes playing (by a band) or
singing the Philippine national anthem,
saluting the Philippine flag and reciting the
patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs.
Division Superintendent of Schools of Cebu
and Manuel F. Biongcog, Cebu District
Supervisor," the petitioners are 43 high
school and elementary school students in
the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan Cebu
province. All minors, they are assisted by
their parents who belong to the religious
group known as Jehovah's Witnesses
which claims some 100,000 "baptized
publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs.
Division Superintendent of Schools of Cebu
and Antonio A. Sangutan," the petitioners
are 25 high school and grade school
students enrolled in public schools in
Asturias, Cebu, whose parents are
Jehovah's Witnesses. Both petitions were
prepared by the same counsel, Attorney
Felino M. Ganal.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
All the petitioners in these two cases were CEREMONY IN ALL
expelled from their classes by the public EDUCATIONAL INSTITUTIONS.
school authorities in Cebu for refusing to
salute the flag, sing the national anthem 1. The Filipino Flag shall be
and recite the patriotic pledge as required displayed by all educational
by Republic Act No. 1265 of July 11, 1955, institutions, public and private,
and by Department Order No. 8 dated July every school day throughout
21, 1955 of the Department of Education, the year. It shall be raised at
Culture and Sports (DECS) making the flag sunrise and lowered at sunset.
ceremony compulsory in all educational The flag-staff must be straight,
institutions. Republic Act No. 1265 slightly and gently tapering at
provides: the end, and of such height as
would give the Flag a
Sec. 1. All educational commanding position in front
institutions shall henceforth of the building or within the
observe daily flag ceremony, compound.
which shall be simple and
dignified and shall include the 2. Every public and private
playing or singing of the educational institution shall
Philippine National anthem. hold a flag-raising ceremony
every morning except when it
Sec. 2. The Secretary of is raining, in which event the
Education is hereby authorized ceremony may be conducted
and directed to issue or cause indoors in the best way
to be issued rules and possible. A retreat shall be
regulations for the proper held in the afternoon of the
conduct of the flag ceremony same day. The flag-raising
herein provided. ceremony in the morning shall
be conducted in the following
Sec. 3. Failure or refusal to manner:
observe the flag
ceremony provided by this Act a. Pupils and
and in accordance with rules teachers or
and regulations issued by the students and
Secretary of Education, after faculty
proper notice and members who are
hearing, shall subject the in school and its
educational institution premises shall
concerned and its head to assemble in
public censure as an formation facing
administrative punishment the flag. At
which shall be published at command, books
least once in a newspaper of shall be put away
general circulation. or held in the left
hand
In case of failure to observe for and everybody
the second time the flag- shall come to
ceremony provided by this Act, attention. Those
the Secretary of Education, with hats shall
after proper notice and uncover. No one
hearing, shall cause the shall enter or
cancellation of the recognition leave the school
or permit of the private grounds during
educational institution the ceremony.
responsible for such failure.
b. The assembly
The implementing rules and regulations in shall sing the
Department Order No. 8 provide: Philippine
National
RULES AND REGULATIONS Anthem accompan
FOR CONDUCTING THE FLAG ied by the school
 HUMAN RIGHTS PRELIMFULLTEXT CASES
band or without or whose
the population is
accompaniment if predominantly
it has none; or the Filipino.
anthem may be
played by the English Version
school band
alone. At the first I love the
note of the Philippines.
Anthem, the flag It is the land of my
shall be raised birth;
briskly. While the It is the home of
flag is being my people.
raised, all persons It protects me and
present shall helps me to be,
stand at attention strong, happy and
and execute a useful.
salute. Boys and In return, I will
men with hats heed the counsel
shall salute by of my parents;
placing the hat I will obey the
over the heart. rules of my
Those without hat school;
may stand with I will perform the
their arms and duties of a
hands down and patriotic, law-
straight at the abiding citizen;
sides. Those in I will serve my
military or Boy country
Scout uniform unselfishly and
shall give the faithfully;
salute prescribed I will be a true,
by their Filipino in thought,
regulations. The in word, in deed.
salute shall be
started as the Flag x x x           x x x          x x x
rises, and
completed upon Jehovah's Witnesses admittedly teach their
last note of the children not to salute the flag, sing the
anthem. national anthem, and recite the patriotic
pledge for they believe that those are "acts
c. Immediately of worship" or "religious devotion" (p.
following the 10, Rollo) which they "cannot
singing of the conscientiously give . . . to anyone or
Anthem, the anything except God" (p. 8, Rollo). They feel
assembly shall bound by the Bible's command to "guard
recite in unison ourselves from
the following idols — 1 John 5:21" (p. 9, Rollo). They
patriotic consider the flag as an image or idol
pledge (English or representing the State (p. 10, Rollo). They
vernacular think the action of the local authorities in
version), which compelling the flag salute and pledge
may bring the transcends constitutional limitations on the
ceremony to a State's power and invades the sphere of the
close. This is intellect and spirit which the Constitution
required of all protect against official control (p. 10, Rollo).
public schools
and of private This is not the first time that the question,
schools which are of whether the children of Jehovah's
intended for Witnesses may be expelled from school for
Filipino students disobedience of R.A. No. 1265 and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Department Order No. 8, series of 1955, has
been raised before this Court.
The same issue was raised in 1959
in Gerona, et al. vs. Secretary of Education,
et al., 106 Phil. 2 (1959) and Balbuna, et al.
vs. Secretary of Education, 110 Phil. 150
(1960). This Court in the Gerona case
upheld the expulsion of the students, thus:
The flag is not an image but a
symbol of the Republic of the
Philippines, an emblem of
national sovereignty, of
national unity and cohesion
and of freedom and liberty
which it and the Constitution
guarantee and protect. Under a
system of complete separation
of church and state in the
government, the flag is utterly
devoid of any religious
significance. Saluting the flag
does not involve any religious
ceremony. The flag salute is no
more a religious ceremony
than the taking of an oath of
office by a public official or by
a candidate for admission to
the bar.
In requiring school pupils to
participate in the flag salute,
the State thru the Secretary of
Education is not imposing a
religion or religious belief or a
religious test on said students.
It is merely enforcing a
non-discriminatory school
regulation applicable to all
alike whether Christian,
Moslem, Protestant or
Jehovah's Witness. The State
is merely carrying out the duty
imposed upon it by the
Constitution which charges it
with supervision over and
regulation of all educational
institutions, to establish and
maintain a complete and
adequate system of public
education, and see to it that all
schools aim to develop, among
other things, civic conscience
and teach the duties of
citizenship.
The children of Jehovah's
Witnesses cannot be exempted
from participation in the flag
ceremony. They have no valid
right to such exemption.
Moreover, exemption to the
requirement will disrupt school
discipline and demoralize the
rest of the school population
which by far constitutes the
great majority.
The freedom of religious belief
guaranteed by the Constitution
does not and cannot mean
exemption from or non-
compliance with reasonable
and non-discriminatory laws,
rules and regulations
promulgated by competent
authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as
follows:
The Secretary of Education
was duly authorized by the
Legislature thru Republic Act
1265 to promulgate said
Department Order, and its
provisions requiring the
observance of the flag salute,
not being a religious ceremony
but an act and profession of
love and allegiance and pledge
of loyalty to the fatherland
which the flag stands for, does
not violate the constitutional
provision on freedom of
religion. (Balbuna, et al. vs.
Secretary of Education, et al.,
110 Phil. 150).
Republic Act No. 1265 and the ruling
in Gerona have been incorporated in
Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive
Order No. 292) which took effect on
September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63,
No. 38 of September 21, 1987). Paragraph 5
of Section 28 gives legislative cachet to the
ruling in Gerona, thus:
5. Any teacher or student or
pupil who refuses to join or
participate in the flag
ceremony may be dismissed
after due investigation.
However, the petitioners herein have not
raised in issue the constitutionality of the
above provision of the new Administrative
Code of 1987. They have targeted only
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Republic Act No. 1265 and the cohesion and
implementing orders of the DECS. freedom and
liberty which it
In 1989, the DECS Regional Office in Cebu and the
received complaints about teachers and Constitution
pupils belonging to the Jehovah's guarantee and
Witnesses, and enrolled in various public protect. (Gerona,
and private schools, who refused to sing et al. vs. Sec. of
the Philippine national anthem, salute the Education, et al.,
Philippine flag and recite the patriotic 106 Phil. 11.)
pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of 4. As regards the claim for
DECS, and Dr. Atty. Marcelo M. Bacalso, freedom of belief, which an
Assistant Division Superintendent, recalling objectionist may advance, the
this Court's decision in Gerona, issued Supreme Court asserts:
Division Memorandum No. 108, dated
November 17, 1989 (pp. 147-148, Rollo of But between the
G.R. No. 95770) directing District freedom of belief
Supervisors, High School Principals and and the exercise
Heads of Private Educational institutions as of said belief,
follows: there is quite a
stretch of road to
1. Reports reaching this Office travel. If the
disclose that there are a exercise of said
number of teachers, pupils, religious belief
students, and school clashes with the
employees in public schools established
who refuse to salute the institutions of
Philippine flag or participate in society and with
the daily flag ceremony the law, then the
because of some religious former must yield
belief. and give way to
the latter. (Gerona,
2. Such refusal not only et al. vs. Sec. of
undermines Republic Act No. Education, et al.,
1265 and the DECS Department 106 Phil. 11.)
Order No. 8, Series of 1955
(Implementing Rules and 5. Accordingly, teachers and
Regulations) but also strikes at school employees who choose
the heart of the DECS not to participate in the daily
sustained effort to inculcate flag ceremony or to obey the
patriotism and nationalism. flag salute regulation spelled
out in Department Order No. 8,
3. Let it be stressed that any Series of 1955, shall be
belief that considers the flag as considered removed from the
an image is not in any manner service after due process.
whatever a justification for not
saluting the Philippine flag or 6. In strong language about
not participating in flag pupils and students who do the
ceremony. Thus, the Supreme same the Supreme Court has
Court of the Philippine says: this to say:

The flag is not an If they choose not

image but a to obey the flag
symbol of the salute regulation,
Republic of the they merely lost
Philippines, an the benefits of
emblem of public education
national being maintained
sovereignty, of at the expense of
national unity and their fellow
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Citizens, nothing
more. According
to a popular
expression, they
could take it or
leave it! Having
elected not
comply with the
regulation about
the flag salute
they forfeited their
right to attend
public schools.
(Gerona, et al. vs.
Sec. of Education,
et al., 106 Phil. 15.)
7. School administrators shall
therefore submit to this Office
a report on those who choose
not to participate in flag
ceremony or salute the
Philippine flag. (pp. 147-
148, Rollo of G.R. No. 95770;
Emphasis supplied).
Cebu school officials resorted to a number
of ways to persuade the children of
Jehovah's Witnesses to obey the
memorandum. In the Buenavista
Elementary School, the children were asked
to sign an Agreement (Kasabutan) in the
Cebuano dialect promising to sing the
national anthem, place their right hand on
their breast until the end of the song and
recite the pledge of allegiance to the flag
(Annex D, p. 46, Rollo of G.R. No. 95770 and
p. 48, Rollo of G.R. No. 95887), but they
refused to sign the "Kasabutan" (p.
20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the
Teacher-In-Charge, Antonio A. Sangutan,
met with the Jehovah's Witnesses' parents,
as disclosed in his letter of October 17,
1990, excerpts from which reveal the
following:
After two (2) fruitless
confrontation meetings with
the Jehovah's Witnesses'
parents on October 2, 1990 and
yesterday due to their firm
stand not to salute the flag of
the Republic of the Philippines
during Flag Ceremony and
other occasions, as mandated
by law specifically Republic
Act No. 1265, this Office hereby
orders the dropping from the
list in the School Register (BPS
Form I) of all teachers, all
Jehovah Witness pupils from
Grade I up to Grade VI effective
today.
xxx xxx xxx
to
This order is in compliance
with Division Memorandum No.
108 s. 1989 dated November
17, 1989 by virtue of
Department Order No. 8 s. 1955
dated July 21, 1955 in
accordance with Republic Act
No. 1265 and Supreme Court
Decision of a case "Genaro
Gerona, et al., Petitioners and
Appellants vs. The Honorable
Secretary of Education, et al.,
Respondents and Appellees'
dated August 12, 1959 against
their favor. (p. 149, Rollo of
G.R. No. 95770.)
In the Daan Bantayan District, the District
Supervisor, Manuel F. Biongcog, ordered
the "dropping from the rolls" of students
who "opted to follow their religious belief
which is against the Flag Salute Law" on
the theory that "they forfeited their right to
attend public schools." (p. 47, Rollo of G.R.
No. 95770.)
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24,
1990.
Respectfully returned to Mrs.
Alicia A. Diaz, School In
Charge [sic], Agujo Elementary
School with the information
that this office is sad to order
the dropping of Jeremias
Diamos and Jeaneth Diamos,
Grades III and IV pupils
respectively from the roll since
they opted to follow their
religious belief which is
against the Flag Salute
Law (R.A. 1265) and DECS
Order No. 8, series of 1955,
having elected not to comply
with the regulation about the
flag salute they forfeited their
right to attend public schools
(Gerona, et al. vs. Sec. of
Education, et al., 106
Philippines 15). However,
should they change their mind
to respect and follow the Flag
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Salute Law they may be re- dropping from the
accepted. rolls of herein
petitioners from
(Sgd.) their respective
MANU schools;
EL F.
BION ii. prohibiting and
GCOG enjoining
Distric respondent from
t further barring the
Super petitioners from
visor their classes or
otherwise
(p. 47, Rollo of G.R. No. 95770.) implementing the
expulsion ordered
The expulsion as of October 23, 1990 of the on petitioners; and
43 petitioning students of the
Daanbantayan National High School, Agujo iii. compelling the
Elementary School, Calape Barangay respondent and all
National High School, Pinamungajan persons acting for
Provincial High School, Tabuelan Central him to admit and
School, Canasojan Elementary School, order the re-
Liboron Elementary School, Tagaytay admission of
Primary School, San Juan Primary School petitioners to their
and Northern Central Elementary School of respective
San Fernando, Cebu, upon order of then schools. (p.
Acting Division Superintendent Marcelo 41, Rollo.)
Bacalso, prompted some Jehovah's
Witnesses in Cebu to appeal to the and that pending the determination of the
Secretary of Education Isidro Cariño but the merits of these cases, a temporary
latter did not answer their letter. (p. restraining order be issued enjoining the
21, Rollo.) respondents from enforcing the expulsion
of the petitioners and to re-admit them to
The petition in G.R. No. 95887 was filed by their respective classes.
25 students who were similarly expelled
because Dr. Pablo Antopina, who On November 27, 1990, the Court issued a
succeeded Susana Cabahug as Division temporary restraining order and a writ of
Superintendent of Schools, would not recall preliminary mandatory injunction
the expulsion orders of his predecessor. commanding the respondents to
Instead, he verbally caused the expulsion of immediately re-admit the petitioners to their
some more children of Jehovah's respective classes until further orders from
Witnesses. this Court (p. 57, Rollo).

On October 31, 1990, the students and their The Court also ordered the Secretary of
parents filed these special civil actions Education and Cebu District Supervisor
for Mandamus, Certiorari and Prohibition Manuel F. Biongcog to be impleaded as
alleging that the public respondents acted respondents in these cases.
without or in excess of their jurisdiction and
with grave abuse of discretion — (1) in On May 13, 1991, the Solicitor General filed
ordering their expulsion without prior a consolidated comment to the petitions (p.
notice and hearing, hence, in violation of 98, Rollo) defending the expulsion orders
their right to due process, their right to free issued by the public respondents on the
public education, and their right to freedom grounds that:
of speech, religion and worship (p.
23, Rollo). The petitioners pray that: 1. Bizarre religious practices of
the Jehovah's Witnesses
c. Judgment be rendered: produce rebellious and anti-
social school children and
i. declaring null consequently disloyal and
and void the mutant Filipino citizens.
expulsion or
 HUMAN RIGHTS PRELIMFULLTEXT CASES
2. There are no new and valid
grounds to sustain the charges
of the Jehovah's Witnesses
that the DECS' rules and
regulations on the flag salute
ceremonies are violative of
their freedom of religion and
worship.
3. The flag salute is devoid of
any religious significance;
instead, it inculcates respect
and love of country, for which
the flag stands.
4. The State's compelling
interests being pursued by the
DECS' lawful regulations in
question do not warrant
exemption of the school
children of the Jehovah's
Witnesses from the flag salute
ceremonies on the basis of
their own self-perceived
religious convictions.
5. The issue is not freedom of
speech but enforcement of law
and jurisprudence.
6. State's power to regulate
repressive and unlawful
religious practices justified,
besides having scriptural
basis.
7. The penalty of expulsion is
legal and valid, more so with
the enactment of Executive
Order No. 292 (The
Administrative Code of 1987).
Our task here is extremely difficult, for the
30-year old decision of this court
in Gerona upholding the flag salute law and
approving the expulsion of students who
refuse to obey it, is not lightly to be trifled
with.
It is somewhat ironic however, that after
the Gerona ruling had received legislative
cachet by its in corporation in the
Administrative Code of 1987, the present
Court believes that the time has come to re-
examine it. The idea that one may be
compelled to salute the flag, sing the
national anthem, and recite the patriotic
pledge, during a flag ceremony on pain of
being dismissed from one's job or of being
expelled from school, is alien to the
conscience of the present generation of
Filipinos who cut their teeth on the Bill of
Rights which guarantees their rights to free
speech ** and the free exercise of religious
profession and worship (Sec. 5, Article III,
1987 Constitution; Article IV, Section 8,
1973 Constitution; Article III, Section 1[7],
1935 Constitution).
Religious freedom is a fundamental right
which is entitled to the highest priority and
the amplest protection among human
rights, for it involves the relationship of
man to his Creator (Chief Justice Enrique
M. Fernando's separate opinion in German
vs. Barangan, 135 SCRA 514, 530-531).
The right to religious
profession and worship has a
two-fold aspect, vis., freedom
to believe and freedom to act
on one's belief. The first is
absolute as long as the belief
is confined within the realm of
thought. The second is subject
to regulation where the belief is
translated into external acts
that affect the public welfare (J.
Cruz, Constitutional Law, 1991
Ed., pp. 176-177).
Petitioners stress, however, that while they
do not take part in the compulsory flag
ceremony, they do not engage in "external
acts" or behavior that would offend their
countrymen who believe in expressing their
love of country through the observance of
the flag ceremony. They quietly stand at
attention during the flag ceremony to show
their respect for the right of those who
choose to participate in the solemn
proceedings (Annex F, Rollo of G.R. No.
95887, p. 50 and Rollo of G.R. No. 95770, p.
48). Since they do not engage in disruptive
behavior, there is no warrant for their
expulsion.
The sole justification for a prior
restraint or limitation on the
exercise of religious freedom
(according to the late Chief
Justice Claudio Teehankee in
his dissenting opinion in
German vs. Barangan, 135
SCRA 514, 517) is the
existence of a grave and
present danger of a character
both grave and imminent, of a
serious evil to public safety,
public morals, public health or
any other legitimate public
interest, that the State has a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
right (and duty) to prevent."
Absent such a threat to public
safety, the expulsion of the
petitioners from the schools is
not justified.
The situation that the Court directly
predicted in Gerona that:
The flag ceremony will become
a thing of the past or perhaps
conducted with very few
participants, and the time will
come when we would have
citizens untaught and
uninculcated in and not
imbued with reverence for the
flag and love of country,
admiration for national heroes,
and patriotism — a pathetic,
even tragic situation, and all
because a small portion of the
school population imposed its
will, demanded and was
granted an exemption.
(Gerona, p. 24.)
has not come to pass. We are not
persuaded that by exempting the Jehovah's
Witnesses from saluting the flag, singing
the national anthem and reciting the
patriotic pledge, this religious group which
admittedly comprises a "small portion of
the school population" will shake up our
part of the globe and suddenly produce a
nation "untaught and uninculcated in and
unimbued with reverence for the flag,
patriotism, love of country and admiration
for national heroes" (Gerona vs. Sec. of
Education, 106 Phil. 2, 24). After all, what
the petitioners seek only is exemption from
the flag ceremony, not exclusion from the
public schools where they may study the
Constitution, the democratic way of life and
form of government, and learn not only the
arts, sciences, Philippine history and
culture but also receive training for a
vocation of profession and be taught the
virtues of "patriotism, respect for human
rights, appreciation for national heroes, the
rights and duties of citizenship, and moral
and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula.
Expelling or banning the petitioners from
Philippine schools will bring about the very
situation that this Court had feared
in Gerona. Forcing a small religious group,
through the iron hand of the law, to
participate in a ceremony that violates their
religious beliefs, will hardly be conducive to
love of country or respect for dully
constituted authorities.
As Mr. Justice Jackson remarked in West
Virginia vs. Barnette, 319 U.S. 624 (1943):
. . . To believe that patriotism
will not flourish if patriotic
ceremonies are voluntary and
spontaneous instead of a
compulsory routine is to make
an unflattering estimate of the
appeal of our institutions to
free minds. . . . When they
[diversity] are so harmless to
others or to the State as those
we deal with here, the price is
not too great. But freedom to
differ is not limited to things
that do not matter much. That
would be a mere shadow of
freedom. The test of its
substance is the right to differ
as to things that touch the
heart of the existing order.
Furthermore, let it be noted
that coerced unity and loyalty
even to the country, . . . —
assuming that such unity and
loyalty can be attained through
coercion — is not a goal that is
constitutionally obtainable at
the expense of religious liberty.
A desirable end cannot be
promoted by prohibited means.
(Meyer vs. Nebraska, 262 U.S.
390, 67 L. ed. 1042, 1046.)
Moreover, the expulsion of members of
Jehovah's Witnesses from the schools
where they are enrolled will violate their
right as Philippine citizens, under the 1987
Constitution, to receive free education, for it
is the duty of the State to "protect and
promote the right of all citizens to quality
education . . . and to make such education
accessible to all (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers'
Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni
Cristo, from the coverage of a closed shop
agreement between their employer and a
union because it would violate the teaching
of their church not to join any labor group:
. . . It is certain that not every
conscience can be
accommodated by all the laws
of the land; but when general
 HUMAN RIGHTS PRELIMFULLTEXT CASES
laws conflict with scruples of
conscience, exemptions ought
to be granted unless some
"compelling state interests"
intervenes. (Sherbert vs.
Berner, 374 U.S. 398, 10 L. Ed.
2d 965, 970, 83 S. Ct. 1790.)
We hold that a similar exemption may be
accorded to the Jehovah's Witnesses with
regard to the observance of the flag
ceremony out of respect for their religious
beliefs, however "bizarre" those beliefs may
seem to others. Nevertheless, their right not
to participate in the flag ceremony does not
give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited
by this Court in Non vs. Dames II, 185
SCRA 523, 535, while the highest regard
must be afforded their right to the free
exercise of their religion, "this should not
be taken to mean that school authorities are
powerless to discipline them" if they should
commit breaches of the peace by actions
that offend the sensibilities, both religious
and patriotic, of other persons. If they
quietly stand at attention during the flag
ceremony while their classmates and
teachers salute the flag, sing the national
anthem and recite the patriotic pledge, we
do not see how such conduct may possibly
disturb the peace, or pose "a grave and
present danger of a serious evil to public
safety, public morals, public health or any
other legitimate public interest that the
State has a right (and duty) to prevent
(German vs. Barangan, 135 SCRA 514, 517).
Before we close this decision, it is
appropriate to recall the Japanese
occupation of our country in 1942-1944
when every Filipino, regardless of religious
persuasion, in fear of the invader, saluted
the Japanese flag and bowed before every
Japanese soldier. Perhaps, if petitioners
had lived through that dark period of our
history, they would not quibble now about
saluting the Philippine flag. For when
liberation came in 1944 and our own flag
was proudly hoisted aloft again, it was a
beautiful sight to behold that made our
hearts pound with pride and joy over the
newly-regained freedom and sovereignty of
our nation.
Although the Court upholds in this decision
the petitioners' right under our Constitution
to refuse to salute the Philippine flag on
account of their religious beliefs, we hope,
nevertheless, that another foreign invasion
of our country will not be necessary in
order for our countrymen to appreciate and
cherish the Philippine flag.
WHEREFORE, the petition for certiorari and
prohibition is GRANTED. The expulsion
orders issued by the public respondents
against the petitioners are hereby
ANNULLED AND SET ASIDE. The temporary
restraining order which was issued by this
Court is hereby made permanent.
SO ORDERED.
Narvasa, C.J., Feliciano, Bidin, Regalado,
Davide, Jr., Romero, Nocon, Bellosillo, Melo
and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., is on leave.
 
 
 
Separate Opinions
 
CRUZ, J., concurring:
I am happy to concur with Mme. Justice
Carolina Griño-Aquino in her quietly
eloquent affirmation of a vital postulate of
freedom. I would only add my brief
observations concerning Gerona v.
Secretary of Education.
In my humble view, Gerona was based on
an erroneous assumption. The Court that
promulgated it was apparently laboring
under the conviction that the State had the
right to determine what was religious and
what was not and to dictate to the individual
what he could and could not worship. In
pronouncing that the flag was not a
religious image but a symbol of the nation,
it
was implying that no one had the right to
worship it or — as the petitioners insisted
— not to worship it. This was no different
from saying that the cult that reveres Rizal
as a divinity should not and cannot do so
because he is only a civic figure deserving
honor but not veneration.
It seems to me that every individual is
entitled to choose for himself whom or what
to worship or whether to worship at all. This
 HUMAN RIGHTS PRELIMFULLTEXT CASES
is a personal decision he alone can make.
The individual may worship a spirit or a
person or a beast or a tree (or a flag), and
the State cannot prevent him from doing so.
For that matter, neither can it compel him to
do so. As long as his beliefs are not
externalized in acts that offend the public
interest, he cannot be prohibited from
harboring them or punished for doing so.
In requiring the herein petitioners to
participate in the flag ceremony, the State
has declared ex cathedra that they are not
violating the Bible by saluting the flag. This
is to me an unwarranted intrusion into their
religious beliefs, which tell them the
opposite. The State cannot interpret the
Bible for them; only they can read it as they
see fit. Right or wrong, the meaning they
derive from it cannot be revised or reversed
except perhaps by their own acknowledged
superiors. But certainly not the State. It has
no competence in this matter. Religion is
forbidden territory that the State, for all its
power and authority, cannot invade.
I am not unaware of Justice Frankfurter's
admonition that "the constitutional
protection of religious freedom terminated
disabilities, it did not create new privileges.
It gave religious equality, not civil immunity.
Its essence is freedom from conformity to
religious dogma, not freedom from
conformity to law because of religious
dogma."
But in the case at bar, the law to which the
petitioners are made to conform clashes
with their own understanding of their
religious obligations. Significantly, as
the ponencia notes, their intransigence
does not disturb the peaceful atmosphere
of the school or otherwise prejudice the
public order. Their refusal to salute the flag
and recite the patriotic pledge does not
disrupt the flag ceremony. They neither
mock nor disdain it. The petitioners simply
stand at attention and keep quiet "to show
their respect for the right of those who
choose to participate in the solemn
proceedings." It is for this innocuous
conduct that, pursuant to the challenged
law and regulations, the teachers have been
dismissed and the students excelled.
Freedom of speech includes the right to be
silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the
liberty to utter what is in his mind also
guarantees to him the liberty not to utter
what is not in his mind. The salute is a
symbolic manner of communication that
conveys its message as clearly as the
written or spoken word. As a valid form of
expression, it cannot be compelled any
more than it can be prohibited in the face of
valid religious objections like those raised
in this petition. To impose it on the
petitioners is to deny them the right not to
speak when their religion bids them to be
silent. This coercion of conscience has no
place in the free society.
The democratic system provides for the
accommodation of diverse ideas, including
the unconventional and even the bizarre or
eccentric. The will of the majority prevails,
but it cannot regiment thought by
prescribing the recitation by rote of its
opinions or proscribing the assertion of
unorthodox or unpopular views as in this
case. The conscientious objections of the
petitioners, no less than the impatience of
those who disagree with them, are
protected by the Constitution. The State
cannot make the individual speak when the
soul within rebels.
PADILLA, J., concurring:
I concur in the Court's decision penned by
Madame Justice Carolina C. Griño-Aquino
that school teachers and students who
cannot salute the flag, sing the national
anthem and recite the pledge of loyalty to
the country, on grounds of religious belief
or conviction, may not on this ground alone
be dismissed from the service or expelled
from the school.
At the same time, I am really concerned
with what could be the
far-reaching consequences of our ruling in
that, we may in effect be sanctioning
a privileged or elite class of teachers and
students who will hereafter be exempt from
participating, even when they are in the
school premises, in the flag ceremony in
deference to their religious scruples. What
happens, for instance, if some citizens,
based also on their religious beliefs, were
to refuse to pay taxes and license fees to
the government? Perhaps problems of this
nature should not be anticipated. They will
be resolved when and if they ever arise. But
with today's decision, we may have created
more problems than we have solved.
It cannot also be denied that the State has
the right and even the duty to promote
among its citizens, especially the youth,
love and country, respect for the flag and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
reverence for its national heroes. It cannot
also be disputed that the State has the right
to adopt reasonable means by which these
laudable objectives can be effectively
pursued and achieved. The flag ceremony
is one such device intended to inspire
patriotism and evoke the finest sentiments
of love of country and people.
In fine, the flag ceremony is a legitimate
means to achieve legitimate (and noble)
ends. For a select few to be exempt from
the flag ceremony and all that it represent
seven if the exemption is predicated on
respect for religious scruples, could
be divisive in its impact on the school
population or community.
I would therefore submit that, henceforth,
teachers and students who because of
religious scruples or beliefs cannot actively
participate in the flag ceremony conducted
in the school premises should be excluded
beforehand from such ceremony. Instead of
allowing the religious objector to attend the
flag ceremony and display therein his
inability to salute the flag, sing the national
anthem and recite the pledge of loyalty to
the Republic, he or she should remain in
the classroom while honors to the flag are
conducted and manifested in the
"quadrangle" or equivalent place within
school premises; or if the flag ceremony
must be held in a hall, the religious objector
must take his or her place at the rear of (or
outside) the hall while those who actively
participate in the ceremony must take the
front places. This arrangement can, in my
view, achieve an accommodation and, to a
certain extent, harmonization of a citizen's
constitutional right to freedom of religion
and a valid exercise of the State's
fundamental and legitimate authority to
require homage and honor to the flag as the
symbol of the Nation.
 
# Separate Opinions
CRUZ, J., concurring:
I am happy to concur with Mme. Justice
Carolina Griño-Aquino in her quietly
eloquent affirmation of a vital postulate of
freedom. I would only add my brief
observations concerning Gerona v.
Secretary of Education.
In my humble view, Gerona was based on
an erroneous assumption. The Court that
promulgated it was apparently laboring
under the conviction that the State had the
right to determine what was religious and
what was not and to dictate to the individual
what he could and could not worship. In
pronouncing that the flag was not a
religious image but a symbol of the nation,
it
was implying that no one had the right to
worship it or — as the petitioners insisted
— not to worship it. This was no different
from saying that the cult that reveres Rizal
as a divinity should not and cannot do so
because he is only a civic figure deserving
honor but not veneration.
It seems to me that every individual is
entitled to choose for himself whom or what
to worship or whether to worship at all. This
is a personal decision he alone can make.
The individual may worship a spirit or a
person or a beast or a tree (or a flag), and
the State cannot prevent him from doing so.
For that matter, neither can it compel him to
do so. As long as his beliefs are not
externalized in acts that offend the public
interest, he cannot be prohibited from
harboring them or punished for doing so.
In requiring the herein petitioners to
participate in the flag ceremony, the State
has declared ex cathedra that they are not
violating the Bible by saluting the flag. This
is to me an unwarranted intrusion into their
religious beliefs, which tell them the
opposite. The State cannot interpret the
Bible for them; only they can read it as they
see fit. Right or wrong, the meaning they
derive from it cannot be revised or reversed
except perhaps by their own acknowledged
superiors. But certainly not the State. It has
no competence in this matter. Religion is
forbidden territory that the State, for all its
power and authority, cannot invade.
I am not unaware of Justice Frankfurter's
admonition that "the constitutional
protection of religious freedom terminated
disabilities, it did not create new privileges.
It gave religious equality, not civil immunity.
Its essence is freedom from conformity to
religious dogma, not freedom from
conformity to law because of religious
dogma."
But in the case at bar, the law to which the
petitioners are made to conform clashes
with their own understanding of their
religious obligations. Significantly, as
the ponencia notes, their intransigence
does not disturb the peaceful atmosphere
 HUMAN RIGHTS PRELIMFULLTEXT CASES
of the school or otherwise prejudice the
public order. Their refusal to salute the flag
and recite the patriotic pledge does not
disrupt the flag ceremony. They neither
mock nor disdain it. The petitioners simply
stand at attention and keep quiet "to show
their respect for the right of those who
choose to participate in the solemn
proceedings." It is for this innocuous
conduct that, pursuant to the challenged
law and regulations, the teachers have been
dismissed and the students excelled.
Freedom of speech includes the right to be
silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the
liberty to utter what is in his mind also
guarantees to him the liberty not to utter
what is not in his mind. The salute is a
symbolic manner of communication that
conveys its message as clearly as the
written or spoken word. As a valid form of
expression, it cannot be compelled any
more than it can be prohibited in the face of
valid religious objections like those raised
in this petition. To impose it on the
petitioners is to deny them the right not to
speak when their religion bids them to be
silent. This coercion of conscience has no
place in the free society.
The democratic system provides for the
accommodation of diverse ideas, including
the unconventional and even the bizarre or
eccentric. The will of the majority prevails,
but it cannot regiment thought by
prescribing the recitation by rote of its
opinions or proscribing the assertion of
unorthodox or unpopular views as in this
case. The conscientious objections of the
petitioners, no less than the impatience of
those who disagree with them, are
protected by the Constitution. The State
cannot make the individual speak when the
soul within rebels.
PADILLA, J., concurring:
I concur in the Court's decision penned by
Madame Justice Carolina C. Griño-Aquino
that school teachers and students who
cannot salute the flag, sing the national
anthem and recite the pledge of loyalty to
the country, on grounds of religious belief
or conviction, may not on this ground alone
be dismissed from the service or expelled
from the school.
At the same time, I am really concerned
with what could be the
far-reaching consequences of our ruling in
that, we may in effect be sanctioning
a privileged or elite class of teachers and
students who will hereafter be exempt from
participating, even when they are in the
school premises, in the flag ceremony in
deference to their religious scruples. What
happens, for instance, if some citizens,
based also on their religious beliefs, were
to refuse to pay taxes and license fees to
the government? Perhaps problems of this
nature should not be anticipated. They will
be resolved when and if they ever arise. But
with today's decision, we may have created
more problems than we have solved.
It cannot also be denied that the State has
the right and even the duty to promote
among its citizens, especially the youth,
love and country, respect for the flag and
reverence for its national heroes. It cannot
also be disputed that the State has the right
to adopt reasonable means by which these
laudable objectives can be effectively
pursued and achieved. The flag ceremony
is one such device intended to inspire
patriotism and evoke the finest sentiments
of love of country and people.
In fine, the flag ceremony is a legitimate
means to achieve legitimate (and noble)
ends. For a select few to be exempt from
the flag ceremony and all that it represent
seven if the exemption is predicated on
respect for religious scruples, could
be divisive in its impact on the school
population or community.
I would therefore submit that, henceforth,
teachers and students who because of
religious scruples or beliefs cannot actively
participate in the flag ceremony conducted
in the school premises should be excluded
beforehand from such ceremony. Instead of
allowing the religious objector to attend the
flag ceremony and display therein his
inability to salute the flag, sing the national
anthem and recite the pledge of loyalty to
the Republic, he or she should remain in
the classroom while honors to the flag are
conducted and manifested in the
"quadrangle" or equivalent place within
school premises; or if the flag ceremony
must be held in a hall, the religious objector
must take his or her place at the rear of (or
outside) the hall while those who actively
participate in the ceremony must take the
front places. This arrangement can, in my
view, achieve an accommodation and, to a
certain extent, harmonization of a citizen's
constitutional right to freedom of religion
and a valid exercise of the State's
 HUMAN RIGHTS PRELIMFULLTEXT CASES
fundamental and legitimate authority to
require homage and honor to the flag as the
symbol of the Nation.
# Footnotes
** The flag salute, singing the
national anthem and reciting
the patriotic pledge are all
forms of utterances.
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V.
SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON
ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES,
JR., and ALFREDO
SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON
SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition
suits with preliminary injunction relates to the
power of the incumbent President of the
Philippines to propose amendments to the
present Constitution in the absence of the
interim National Assembly which has not been
convened.
On September 2, 1976, President Ferdinand E.
Marcos issued Presidential Decree No. 991
calling for a national referendum on October
16, 1976 for the Citizens Assemblies
("barangays") to resolve, among other things,
the issues of martial law, the I . assembly, its
replacement, the powers of such replacement,
the period of its existence, the length of the
period for tile exercise by the President of his
present powers.1
Twenty days after or on September 22, 1976,
the President issued another related decree,
Presidential Decree No. 1031, amending the
previous Presidential Decree No. 991, by
declaring the provisions of presidential Decree
No. 229 providing for the manner of voting and
canvass of votes in "barangays" (Citizens
Assemblies) applicable to the national
referendum-plebiscite of October 16, 1976.
Quite relevantly, Presidential Decree No. 1031
repealed Section 4, of Presidential Decree No.
991, the full text of which (Section 4) is quoted
in the footnote below.2
On the same date of September 22, 1976, the
President issued Presidential Decree No. 1033,
stating the questions to be submitted to the
people in the referendum-plebiscite on October
16, 1976. The Decree recites in its "whereas"
clauses that the people's continued opposition
to the convening of the National Assembly
evinces their desire to have such body
abolished and replaced thru a constitutional
amendment, providing for a legislative body,
which will be submitted directly to the people in
the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be
continued, do you approve the following
amendments to the Constitution? For the
purpose of the second question, the
referendum shall have the effect of a plebiscite
within the contemplation of Section 2 of Article
XVI of the Constitution.
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National
Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa
which shall not be more than 120, unless
otherwise provided by law, shall include the
incumbent President of the Philippines,
representatives elected from the different
regions of the nation, those who shall not be
less than eighteen years of age elected by their
respective sectors, and those chosen by the
incumbent President from the members of the
Cabinet. Regional representatives shall be
apportioned among the regions in accordance
with the number of their respective inhabitants
and on the basis of a uniform and progressive
ratio while the sectors shall be determined by
law. The number of representatives from each
region or sector and the, manner of their
election shall be prescribed and regulated by
law.
2. The interim Batasang Pambansa shall have
the same powers and its members shall have
the same functions, responsibilities, rights,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
privileges, and disqualifications as the interim
National Assembly and the regular National
Assembly and the members thereof. However,
it shall not exercise the power provided in
Article VIII, Section 14(l) of the Constitution.
3. The incumbent President of the Philippines
shall, within 30 days from the election and
selection of the members, convene the interim
Batasang Pambansa and preside over its
sessions until the Speaker shall have been
elected. The incumbent President of the
Philippines shall be the Prime Minister and he
shall continue to exercise all his powers even
after the interim Batasang Pambansa is
organized and ready to discharge its functions
and likewise he shall continue to exercise his
powers and prerogatives under the nineteen
hundred and thirty five. Constitution and the
powers vested in the President and the Prime
Minister under this Constitution.
4. The President (Prime Minister) and his
Cabinet shall exercise all the powers and
functions, and discharge the responsibilities of
the regular President (Prime Minister) and his
Cabinet, and shall be subject only to such
disqualifications as the President (Prime
Minister) may prescribe. The President (Prime
Minister) if he so desires may appoint a Deputy
Prime Minister or as many Deputy Prime
Ministers as he may deem necessary.
5. The incumbent President shall continue to
exercise legislative powers until martial law
shall have been lifted.
6. Whenever in the judgment of the President
(Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or
whenever the interim Batasang Pambansa or
the regular National Assembly fails or is unable
to act adequately on any matter for any reason
that in his judgment requires immediate action,
he may, in order to meet the exigency, issue
the necessary decrees, orders or letters of
instructions, which shall form part of the law of
the land.
7. The barangays and sanggunians shall
continue as presently constituted but their
functions, powers, and composition may be
altered by law.
Referenda conducted thru the barangays and
under the Supervision of the Commission on
Elections may be called at any time the
government deems it necessary to ascertain
the will of the people regarding any important
matter whether of national or local interest.
8. All provisions of this Constitution not
inconsistent with any of these amendments
shall continue in full force and effect.
9. These amendments shall take effect after
the incumbent President shall have proclaimed
that they have been ratified by I majority of the
votes cast in the referendum-plebiscite."
The Commission on Elections was vested with
the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.
On September 27, 1976, PABLO C. SANIDAD
and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with
Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and
conducting the Referendum Plebiscite on
October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar
as they propose amendments to the
Constitution, as well as Presidential Decree
No. 1031, insofar as it directs the Commission
on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled
on October 16, 1976.
Petitioners contend that under the 1935 and
1973 Constitutions there is no grant to the
incumbent President to exercise the constituent
power to propose amendments to the new
Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no
constitutional or legal basis.
On October 5, 1976, the Solicitor General filed
the comment for respondent Commission on
Elections, The Solicitor General principally
maintains that petitioners have no standing to
sue; the issue raised is political in nature,
beyond judicial cognizance of this Court; at this
state of the transition period, only the
incumbent President has the authority to
exercise constituent power; the referendum-
plebiscite is a step towards normalization.
On September 30, 1976, another action for
Prohibition with Preliminary Injunction,
docketed as L-44684, was instituted by
VICENTE M. GUZMAN, a delegate to the 1971
Constitutional Convention, asserting that the
power to propose amendments to, or revision
of the Constitution during the transition period
is expressly conferred on the interim National
Assembly under Section 16, Article XVII of the
Constitution.3
Still another petition for Prohibition with
Preliminary Injunction was filed on October 5,
1976 by RAUL M. GONZALES, his son RAUL,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
JR., and ALFREDO SALAPANTAN, docketed
as L- 44714, to restrain the implementation of
Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.
These last petitioners argue that even granting
him legislative powers under Martial Law, the
incumbent President cannot act as a
constituent assembly to propose amendments
to the Constitution; a referendum-plebiscite is
untenable under the Constitutions of 1935 and
1973; the submission of the proposed
amendments in such a short period of time for
deliberation renders the plebiscite a nullity; to
lift Martial Law, the President need not consult
the people via referendum; and allowing
15-.year olds to vote would amount to an
amendment of the Constitution, which confines
the right of suffrage to those citizens of the
Philippines 18 years of age and above.
We find the petitions in the three entitled cases
to be devoid of merit.
I Decree 1033 to the people in a Referendum-
Justiciability of question raised.
1. As a preliminary resolution, We rule that the
petitioners in L-44640 (Pablo C. Sanidad and
Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of
Presidential Decree Nos. 991, 1031, and 1033.
It is now an ancient rule that the valid source of
a stature Presidential Decrees are of such
nature-may be contested by one who will
sustain a direct injuries as a in result of its
enforcement. At the instance of taxpayers, laws
providing for the disbursement of public funds
may be enjoined, upon the theory that the
expenditure of public funds by an officer of the
State for the purpose of executing an
unconstitutional act constitutes a the concurrence of at least ten Members. ..."
misapplication of such funds. 4 The breadth of
Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the
effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the
sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful
expenditure of these amounts of public money
sufficiently clothes them with that personality to
litigate the validity of the Decrees appropriating
said funds. Moreover, as regards taxpayer's
suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present
case, We deem it sound to exercise that
discretion affirmatively so that the authority
upon which the disputed Decrees are
predicated may be inquired into.
2. The Solicitor General would consider the
question at bar as a pure political one, lying
outside the domain of judicial review. We
disagree. The amending process both as to
proposal and ratification, raises a judicial
question. 8 This is especially true in cases
where the power of the Presidency to initiate
the of normally exercised by the legislature, is
seriously doubted. Under the terms of the 1973
Constitution, the power to propose
amendments o the constitution resides in the
interim National Assembly in the period of
transition (See. 15, Transitory provisions). After
that period, and the regular National Assembly
in its active session, the power to propose
amendments becomes ipso facto the
prerogative of the regular National Assembly
(Sec. 1, pars. 1 and 2 of Art. XVI, 1973
constitution). The normal course has not been
followed. Rather than calling the National
Assembly to constitute itself into a constituent
assembly the incumbent President undertook
the proposal of amendments and submitted the
proposed amendments thru Presidential
Plebiscite on October 16. Unavoidably, the
regularity regularity of the procedure for
amendments, written in lambent words in the
very Constitution sought to be amended, raises
a contestable issue. The implementing
Presidential Decree Nos. 991, 1031, and 1033,
which commonly purport to have the force and
effect of legislation are assailed as invalid, thus
the issue of the validity of said Decrees is
plainly a justiciable one, within the competence
of this Court to pass upon. Section 2 (2), Article
X of the new Constitution provides: "All cases
involving the constitutionality of a treaty,
executive agreement, or law may shall be
heard and decided by the Supreme Court en
banc and no treaty, executive agreement, or
law may be declared unconstitutional without
The Supreme Court has the last word in the
construction not only of treaties and statutes,
but also of the Constitution itself The
amending, like all other powers organized in
the Constitution, is in form a delegated and
hence a limited power, so that the Supreme
Court is vested with that authorities to
determine whether that power has been
discharged within its limits.
Political questions are neatly associated with
the wisdom, of the legality of a particular act.
Where the vortex of the controversy refers to
the legality or validity of the contested act, that
matter is definitely justiciable or non-political.
What is in the heels of the Court is not the
wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but
 HUMAN RIGHTS PRELIMFULLTEXT CASES
his constitutional authority to perform such act
or to assume the power of a constituent
assembly. Whether the amending process
confers on the President that power to propose
amendments is therefore a downright
justiciable question. Should the contrary be
found, the actuation of the President would
merely be a brutum fulmen. If the Constitution
provides how it may be amended, the judiciary
as the interpreter of that Constitution, can
declare whether the procedure followed or the
authority assumed was valid or not.10
We cannot accept the view of the Solicitor
General, in pursuing his theory of non-
justiciability, that the question of the President's
authority to propose amendments and the
regularity of the procedure adopted for
submission of the proposal to the people
ultimately lie in the judgment of the A clear
Descartes fallacy of vicious circle. Is it not that
the people themselves, by their sovereign act,
provided for the authority and procedure for the
amending process when they ratified the
present Constitution in 1973? Whether,
therefore, the constitutional provision has been
followed or not is the proper subject of inquiry,
not by the people themselves of course who
exercise no power of judicial but by the
Supreme Court in whom the people
themselves vested that power, a power which
includes the competence to determine whether
the constitutional norms for amendments have
been observed or not. And, this inquiry must be
done a prior not a posterior i.e., before the
submission to and ratification by the people.
Indeed, the precedents evolved by the Court
or, prior constitutional cases underline the
preference of the Court's majority to treat such
issue of Presidential role in the amending
process as one of non-political impression. In
the Plebiscite Cases, 11 the contention of the
Solicitor General that the issue on the legality
of Presidential Decree No. 73 "submitting to
the Pilipino people (on January 15, 1973) for
ratification or rejection the Constitution of the
Republic of the Philippines proposed by the
1971 Constitutional Convention and
appropriating fund s therefore "is a political
one, was rejected and the Court unanimously
considered the issue as justiciable in nature.
Subsequently in the Ratification
12
Cases  involving the issue of whether or not
the validity of Presidential Proclamation No.
1102. announcing the Ratification by the
Filipino people of the constitution proposed by
the 1971 Constitutional Convention," partakes
of the nature of a political question, the
affirmative stand of' the Solicitor General was
dismissed, the Court ruled that the question
raised is justiciable. Chief Justice Concepcion,
expressing the majority view, said, Thus, in the
aforementioned plebiscite cases, We rejected
the theory of the respondents therein that the
question whether Presidential Decree No. 73
calling a plebiscite to be held on January 15,
1973, for the ratification or rejection of the
proposed new Constitution, was valid or not,
was not a proper subject of judicial inquiry
because, they claimed, it partook of a political
nature, and We unanimously declared that the
issue was a justiciable one. With Identical
unanimity. We overruled the respondent's
contention in the 1971 habeas corpus cases,
questioning Our authority to determine the
constitutional sufficiency of the factual bases of
the Presidential proclamation suspending the
privilege of the writ of habeas corpus on
August 21, 1971, despite the opposite view
taken by this Court in Barcelon vs. Baker and
Montenegro vs. Castaneda, insofar as it
adhered to the former case, which view We,
accordingly, abandoned and refused to apply.
For the same reason, We did not apply and
expressly modified, in Gonzales vs.
Commission on Elections, the political-question
theory adopted in Mabanag vs. Lopez
Vito." 13 The return to Barcelon vs. Baker and
Mabanag vs. Lopez Vito, urged by the Solicitor
General, was decisively refused by the Court.
Chief Justice Concepcion continued: "The
reasons adduced in support thereof are,
however, substantially the same as those given
in support on the political question theory
advanced in said habeas corpus and plebiscite
cases, which were carefully considered by this
Court and found by it to be legally unsound and
constitutionally untenable. As a consequence.
Our decisions in the aforementioned habeas
corpus cases partakes of the nature and effect
of a stare decisis which gained added weight
by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on
Amendments ordains:
SECTION 1. (1) Any amendment
to, or revision of, this Constitution
may be proposed by the National
Assembly upon a vote of three-
fourths of all its Members, or by a
constitutional convention. (2) The
National Assembly may, by a
vote of two-thirds of all its
Members, call a constitutional
 HUMAN RIGHTS PRELIMFULLTEXT CASES
convention or, by a majority vote
of all its Members, submit the
question of calling such a
convention to the electorate in an
election.
SECTION 2. Any amendment to,
or revision of, this Constitution
shall be valid when ratified by a
majority of the votes cast in a
plebiscite which shall be held not
later than three months after the
approval of such amendment or
revision.
In the present period of transition, the interim
National Assembly instituted in the Transitory
Provisions is conferred with that amending
power. Section 15 of the Transitory Provisions
reads:
SECTION 15. The interim
National Assembly, upon special
call by the interim Prime Minister,
may, by a majority vote of all its
Members, propose amendments
to this Constitution. Such
amendments shall take effect
when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated
in the constitutional life of the nation, i.e.,
period of normalcy and period of transition. In
times of normally, the amending process may
be initiated by the proposals of the (1) regular
National Assembly upon a vote of three-fourths
of all its members; or (2) by a Constitutional
Convention called by a vote of two-thirds of all
the Members of the National Assembly.
However the calling of a Constitutional
Convention may be submitted to the electorate
in an election voted upon by a majority vote of
all the members of the National Assembly. In
times of transition, amendments may be
proposed by a majority vote of all the Members
of the National Assembly upon special call by
the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had
already settled that the incumbent President is
vested with that prerogative of discretion as to
when he shall initially convene the interim
National Assembly. Speaking for the majority
opinion in that case, Justice Makasiar said:
"The Constitutional Convention intended to
leave to the President the determination of the
time when he shall initially convene the interim
National Assembly, consistent with the
prevailing conditions of peace and order in the
country." Concurring, Justice Fernandez,
himself a member of that Constitutional
Convention, revealed: "(W)hen the Delegates
to the Constitutional Convention voted on the
Transitory Provisions, they were aware of the
fact that under the same, the incumbent
President was given the discretion as to when
he could convene the interim National
Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact,
the proposal that it be convened 'immediately',
made by Delegate Pimentel (V) was rejected.
The President's decision to defer the
convening of the interim National Assembly
soon found support from the people
themselves. In the plebiscite of January 10-15,
1973, at which the ratification of the 1973
Constitution was submitted, the people voted
against the convening of the interim National
Assembly. In the referendum of July 24, 1973,
the Citizens Assemblies ("bagangays")
reiterated their sovereign will to withhold the
convening of the interim National Assembly.
Again, in the referendum of February 27, 1975,
the proposed question of whether the interim
National Assembly shall be initially convened
was eliminated, because some of the members
of Congress and delegates of the
Constitutional Convention, who were deemed
automatically members of the I interim National
Assembly, were against its inclusion since in
that referendum of January, 1973, the people
had already resolved against it.
3. In sensu strictiore, when the legislative arm
of the state undertakes the proposals of
amendment to a Constitution, that body is not
in the usual function of lawmaking. lt is not
legislating when engaged in the amending
process.16 Rather, it is exercising a peculiar
power bestowed upon it by the fundamental
charter itself. In the Philippines, that power is
provided for in Article XVI of the 1973
Constitution (for the regular National Assembly)
or in Section 15 of the Transitory Provisions
(for the National Assembly). While ordinarily it
is the business of the legislating body to
legislate for the nation by virtue of
constitutional conferment amending of the
Constitution is not legislative in character. In
political science a distinction is made between
constitutional content of an organic character
and that of a legislative character'. The
distinction, however, is one of policy, not of
law.17 Such being the case, approval of the
President of any proposed amendment is a
misnomer 18 The prerogative of the President to
approve or disapprove applies only to the
ordinary cases of legislation. The President has
nothing to do with proposition or adoption of
amendments to the Constitution. 19
 HUMAN RIGHTS PRELIMFULLTEXT CASES
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis
government the Philippines is a crisis
government today are more or less
concentrated in the President. 20 According to
Rossiter, "(t)he concentration of government
power in a democracy faced by an emergency
is a corrective to the crisis inefficiencies
inherent in the doctrine of the separation of
powers. In most free states it has generally
been regarded as imperative that the total
power of the government be parceled out
among three mutually independent branches
executive, legislature, and judiciary. It is
believed to be destructive of constitutionalism if
any one branch should exercise any two or
more types of power, and certainly a total
disregard of the separation of powers is, as
Madison wrote in the Federalist, No. 47, 'the
very definition of tyranny.' In normal times the
separation of powers forms a distinct
obstruction to arbitrary governmental action. By
this same token, in abnormal times it may form
an insurmountable barrier to a decisive
emergency action in behalf of the state and its
independent existence. There are moments in
the life of any government when all powers
must work together in unanimity of purpose
and action, even if this means the temporary
union of executive, legislative, and judicial
power in the hands of one man. The more
complete the separation of powers in a
constitutional system, the more difficult and yet
the more necessary will be their fusion in time
of crisis. This is evident in a comparison of the
crisis potentialities of the cabinet and
presidential systems of government. In the
former the all-important harmony of legislature
and executive is taken for granted; in the latter
it is neither guaranteed nor to be to confidently
expected. As a result, cabinet is more easily
established and more trustworthy than
presidential dictatorship. The power of the state
in crisis must not only be concentrated and
expanded; it must also be freed from the
normal system of constitutional and legal
limitations. 21 John Locke, on the other hand,
claims for the executive in its own right a broad
discretion capable even of setting aside the
ordinary laws in the meeting of special
exigencies for which the legislative power had
not provided. 22 The rationale behind such
broad emergency powers of the Executive is
the release of the government from "the
paralysis of constitutional restrains" so that the
crisis may be ended and normal times
restored.
2. The presidential exercise of legislative
powers in time of martial law is now a
conceded valid at. That sun clear authority of
the President is saddled on Section 3 (pars. 1
and 2) of the Transitory Provisions, thus:23
The incumbent President of the
Philippines shall initially convene
the interim National Assembly
and shall preside over its
sessions until the interim Speaker
shall have been elected. He shall
continue to exercise his powers
and prerogatives under the
nineteen hundred and thirty-five
Constitution and the powers
vested in the President and the
Prime Minister under this
Constitution until the calls upon
the interim National Assembly to
elect the interim President and
the interim Prime Minister, who
shall then exercise their
respective powers vested by this
Constitution.
All proclamations, orders,
decrees, instructions, and acts
promulgated, issued, or done by
the incumbent President shall be
part of the law of the land, and
shall remain valid, binding, and
effective even after lifting of
martial law or the ratification of
this Constitution, unless modified,
revoked, or superseded by
subsequent proclamations,
orders, decrees, instructions, or
other acts of the incumbent
President, or unless expressly
and explicitly modified or
repealed by the regular National
Assembly.
"It is unthinkable," said Justice Fernandez, a
1971 Constitutional Convention delegate, "that
the Constitutional Convention, while giving to
the President the discretion when to call the
interim National Assembly to session, and
knowing that it may not be convened soon,
would create a vacuum in the exercise of
legislative powers. Otherwise, with no one to
exercise the lawmaking powers, there would be
paralyzation of the entire governmental
machinery." 24 Paraphrasing Rossiter, this is an
extremely important factor in any constitutional
dictatorship which extends over a period of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
time. The separation of executive and
legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis
government. The steady increase in executive
power is not too much a cause for as the
steady increase in the magnitude and
complexity of the problems the President has
been called upon by the Filipino people to
solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and
economic crisis-a crisis greater than war. In
short, while conventional constitutional law just
confines the President's power as
Commander-in-Chief to the direction of the
operation of the national forces, yet the facts of
our political, social, and economic disturbances
had convincingly shown that in meeting the
same, indefinite power should be attributed to
tile President to take emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate
is constitutionally consigned to the interim
National Assembly during the transition period.
However, the initial convening of that Assembly
is a matter fully addressed to the judgment of
the incumbent President. And, in the exercise
of that judgment, the President opted to defer
convening of that body in utter recognition of
the people's preference. Likewise, in the period
of transition, the power to propose
amendments to the Constitution lies in the
interim National Assembly upon special call by
the President (See. 15 of the Transitory
Provisions). Again, harking to the dictates of
the sovereign will, the President decided not to
call the interim National Assembly. Would it
then be within the bounds of the Constitution
and of law for the President to assume that
constituent power of the interim Assembly vis-
a-vis his assumption of that body's legislative
functions? The answer is yes. If the President
has been legitimately discharging the
legislative functions of the interim Assembly,
there is no reason why he cannot validly
discharge the function of that Assembly to
propose amendments to the Constitution,
which is but adjunct, although peculiar, to its
gross legislative power. This, of course, is not
to say that the President has converted his
office into a constituent assembly of that nature
normally constituted by the legislature. Rather,
with the interim National Assembly not
convened and only the Presidency and the
Supreme Court in operation, the urges of
absolute necessity render it imperative upon
the President to act as agent for and in behalf
of the people to propose amendments to the
Constitution. Parenthetically, by its very
constitution, the Supreme Court possesses no
capacity to propose amendments without
constitutional infractions. For the President to
shy away from that actuality and decline to
undertake the amending process would leave
the governmental machineries at a stalemate
or create in the powers of the State a
destructive vacuum, thereby impeding the
objective of a crisis government "to end the
crisis and restore normal times." In these
parlous times, that Presidential initiative to
reduce into concrete forms the constant voices
of the people reigns supreme. After all,
constituent assemblies or constitutional
conventions, like the President now, are mere
agents of the people .26
2. The President's action is not a unilateral
move. As early as the referendums of January
1973 and February 1975, the people had
already rejected the calling of the interim
National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga
Sanggunian, the Pambansang Katipunan ng
mga Barangay, and the Pambansang
Katipunan ng mga Barangay, representing
42,000 barangays, about the same number of
Kabataang Barangay organizations,
Sanggunians in 1,458 municipalities, 72
provinces, 3 sub-provinces, and 60 cities had
informed the President that the prevailing
sentiment of the people is for the abolition of
the interim National Assembly. Other issues
concerned the lifting of martial law and
amendments to the Constitution .27 The
national organizations of Sangguniang Bayan
presently proposed to settle the issues of
martial law, the interim Assembly, its
replacement, the period of its existence, the
length of the period for the exercise by the
President of its present powers in a referendum
to be held on October 16 .28 The Batasang
Bayan (legislative council) created under
Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9
officials with cabinet rank, 91 members of the
Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga
Sangguniang Bayan voted in session to submit
directly to the people in a plebiscite on October
16, the previously quoted proposed
amendments to the Constitution, including the
issue of martial law .29 Similarly, the
"barangays" and the "sanggunians" endorsed
to the President the submission of the
proposed amendments to the people on
 HUMAN RIGHTS PRELIMFULLTEXT CASES
October 16. All the foregoing led the President
to initiate the proposal of amendments to the
Constitution and the subsequent issuance of
Presidential Decree No, 1033 on September
22, 1976 submitting the questions (proposed
amendments) to the people in the National
Referendum-Plebiscite on October 16.
V participate. This was prompted by the desire of
The People is Sovereign
1. Unlike in a federal state, the location of
sovereignty in a unitary state is easily seen. In
the Philippines, a republican and unitary state,
sovereignty "resides in the people and all
government authority emanates from
them .30 In its fourth meaning, Savigny would
treat people as "that particular organized
assembly of individuals in which, according to
the Constitution, the highest power
exists." 31 This is the concept of popular
sovereignty. It means that the constitutional
legislator, namely the people, is sovereign 32 In
consequence, the people may thus write into
the Constitution their convictions on any
subject they choose in the absence of express
constitutional prohibition. 33 This is because, as
Holmes said, the Constitution "is an
experiment, as all life is all experiment."34 "The
necessities of orderly government," wrote
Rottschaefer, "do not require that one
generation should be permitted to permanently
fetter all future generations." A constitution is
based, therefore, upon a self-limiting decision
of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a
resounding call to the people to exercise their
sovereign power as constitutional legislator.
The proposed amendments, as earlier
discussed, proceed not from the thinking of a
single man. Rather, they are the collated
thoughts of the sovereign will reduced only into
enabling forms by the authority who can
presently exercise the powers of the
government. In equal vein, the submission of
those proposed amendments and the question
of martial law in a referendum-plebiscite
expresses but the option of the people
themselves implemented only by the authority
of the President. Indeed, it may well be said
that the amending process is a sovereign act,
although the authority to initiate the same and
the procedure to be followed reside somehow
in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a
plebiscite. The question - (1) Do you want
martial law to be continued? - is a referendum
question, wherein the 15-year olds may
the Government to reach the larger mas of the
people so that their true pulse may be felt to
guide the President in pursuing his program for
a New Order. For the succeeding question on
the proposed amendments, only those of
voting age of 18 years may participate. This is
the plebiscite aspect, as contemplated in
Section 2, Article XVI of the new
Constitution. 36 On this second question, it
would only be the votes of those 18 years old
and above which will have valid bearing on the
results. The fact that the voting populace are
simultaneously asked to answer the
referendum question and the plebiscite
question does not infirm the referendum-
plebiscite. There is nothing objectionable in
consulting the people on a given issue, which
is of current one and submitting to them for
ratification of proposed constitutional
amendments. The fear of commingled votes
(15-year olds and 18-year olds above) is
readily dispelled by the provision of two ballot
boxes for every barangay center, one
containing the ballots of voters fifteen years of
age and under eighteen, and another
containing the ballots of voters eighteen years
of age and above. 37 The ballots in the ballot
box for voters fifteen years of age and under
eighteen shall be counted ahead of the ballots
of voters eighteen years and above contained
in another ballot box. And, the results of the
referendum-plebiscite shall be separately
prepared for the age groupings, i.e., ballots
contained in each of the two boxes.38
2. It is apt to distinguish here between a
"referendum" and a "plebiscite." A
"referendum" is merely consultative in
character. It is simply a means of assessing
public reaction to the given issues submitted to
the people foe their consideration, the calling of
which is derived from or within the totality of the
executive power of the President.39 It is
participated in by all citizens from the age of
fifteen, regardless of whether or not they are
illiterates, feeble-minded, or ex- convicts .40 A
"plebiscite," on the other hand, involves the
constituent act of those "citizens of the
Philippines not otherwise disqualified by law,
who are eighteen years of age or over, and
who shall have resided in the Philippines for at
least one year and in the place wherein they
 HUMAN RIGHTS PRELIMFULLTEXT CASES
propose to vote for at least six months
preceding the election Literacy, property or any
other substantive requirement is not imposed.
It is generally associated with the amending
process of the Constitution, more particularly,
the ratification aspect.
VII
1. There appeals to be no valid basis for the
claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a
bygone fear. The martial law regime which, in
the observation of Justice Fernando, 41 is
impressed with a mild character recorded no
State imposition for a muffled voice. To be
sure, there are restraints of the individual
liberty, but on certain grounds no total
suppression of that liberty is aimed at. The for
the referendum-plebiscite on October 16
recognizes all the embracing freedoms of
expression and assembly The President
himself had announced that he would not
countenance any suppression of dissenting
views on the issues, as he is not interested in
winning a "yes" or "no" vote, but on the
genuine sentiment of the people on the issues
at hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud
and clear their adverse views on the proposed
amendments and even (in the valid ratification
of the 1973 Constitution, which is already a
settled matter.43 Even government employees
have been held by the Civil Service
Commission free to participate in public
discussion and even campaign for their stand
on the referendum-plebiscite issues.44
VIII
Time for deliberation
is not short.
1. The period from September 21 to October
16 or a period of 3 weeks is not too short for
free debates or discussions on the referendum-
plebiscite issues. The questions are not new.
They are the issues of the day. The people
have been living with them since the
proclamation of martial law four years ago. The
referendums of 1973 and 1975 carried the
same issue of martial law. That
notwithstanding, the contested brief period for
discussion is not without counterparts in
previous plebiscites for constitutional
amendments. Justice Makasiar, in the
Referendum Case, recalls: "Under the old
Society, 15 days were allotted for the
publication in three consecutive issues of the
Official Gazette of the women's suffrage
amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com.
Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-
Kocialskowski was published in only three
consecutive issues of the Official Gazette for
10 days prior to the scheduled plebiscite (Com.
Act 492). For the 1940 Constitutional
amendments providing for the bicameral
Congress, the reelection of the President and
Vice President, and the creation of the
Commission on Elections, 20 days of
publication in three consecutive issues of the
Official Gazette was fixed (Com Act No. 517).
And the Parity Amendment, an involved
constitutional amendment affecting the
economy as well as the independence of the
Republic was publicized in three consecutive
issues of the Official Gazette for 20 days prior
to the plebiscite (Rep. Act No. 73)."45
2. It is worthy to note that Article XVI of the
Constitution makes no provision as to the
specific date when the plebiscite shall be held,
but simply states that it "shall be held not later
than three months after the approval of such
amendment or revision." In Coleman v.
Miller, 46 the United States Supreme court held
that this matter of submission involves "an
appraisal of a great variety of relevant
conditions, political, social and economic,"
which "are essentially political and not
justiciable." The constituent body or in the
instant cases, the President, may fix the time
within which the people may act. This is
because proposal and ratification are not
treated as unrelated acts, but as succeeding
steps in a single endeavor, the natural
inference being that they are not to be widely
separated in time; second, it is only when there
is deemed to be a necessity therefor that
amendments are to be proposed, the
reasonable implication being that when
proposed, they are to be considered and
disposed of presently, and third, ratification is
but the expression of the approbation of the
people, hence, it must be done
47
contemporaneously.   In the words of
Jameson, "(a)n alteration of the Constitution
proposed today has relation to the sentiment
and the felt needs of today, and that, if not
ratified early while that sentiment may fairly be
supposed to exist. it ought to be regarded as
waived, and not again to be voted upon, unless
a second time proposed by proper body
IN RESUME
The three issues are
 HUMAN RIGHTS PRELIMFULLTEXT CASES
1. Is the question of the constitutionality of
Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
2. During the present stage of the transition
period, and under, the environmental
circumstances now obtaining, does the
President possess power to propose
amendments to the Constitution as well as set
up the required machinery and prescribe the
procedure for the ratification of his proposals
by the people?
3. Is the submission to the people of the
proposed amendments within the time frame
allowed therefor a sufficient and proper
submission?
Upon the first issue, Chief Justice Fred Ruiz
Castro and Associate Justices Enrique M.
Fernando, Claudio Teehankee, Antonio P.
Barredo, Cecilia Munoz Palma, Hermogenes
Concepcion Jr. and Ruperto G. Martin are of
the view that the question posed is justiciable,
while Associate Justices Felix V. Makasiar,
Felix Q. Antonio and Ramon C. Aquino hold
the view that the question is political.
Upon the second issue, Chief Justice Castro
and Associate Justices Barredo, Makasiar,
Antonio, Aquino, Concepcion Jr. and Martin
voted in the affirmative, while Associate
Justices Teehankee and Munoz Palma voted in
the negative. Associate Justice Fernando,
conformably to his concurring and dissenting
opinion in Aquino vs. Enrile (59 SCRA 183),
specifically dissents from the proposition that
there is concentration of powers in the
Executive during periods of crisis, thus raising
serious doubts as to the power of the President
to propose amendments.
Upon the third issue, Chief Justice Castro and
Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that
there is a sufficient and proper submission of
the proposed amendments for ratification by
the people. Associate Justices Barredo and
Makasiar expressed the hope, however that
the period of time may be extended. Associate
Justices Fernando, Makasiar and Antonio are
of the view that the question is political and
therefore beyond the competence and
cognizance of this Court, Associate Justice
Fernando adheres to his concurrence in the
opinion of Chief Justice Concepcion in
Gonzales vs. COMELEC (21 SCRA
774).Associate Justices Teehankee and
MUNOZ Palma hold that prescinding from the
President's lack of authority to exercise the
constituent power to propose the amendments,
etc., as above stated, there is no fair and
proper submission with sufficient information
and time to assure intelligent consent or
rejection under the standards set by this Court
in the controlling cases of Gonzales, supra,
and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices
Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted to dismiss the
three petitions at bar. For reasons as
expressed in his separate opinion, Associate
Justice Fernando concurs in the result.
Associate Justices Teehankee and Munoz
Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to
dismiss, the said petitions are hereby
dismissed. This decision is immediately
executory.
SO ORDERED.
Aquino, J, in the result.
Separate Opinions
CASTRO, C.J.:, concurring:
From the challenge as formulated in the three
petitions at bar and the grounds advanced be
the Solicitor General in opposition thereto, as
well as the arguments adduced by the
counsels of the parties at the hearing had on
October 7 and 8, 1976, three vital issues
readily project themselves as the centers of
controversy, namely:
(1) Is the question of the constitutionality of
Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
(2) During the present stage of the transition
period, and under the environmental
circumstances now obtaining, does the
President possess power to propose
amendments to the Constitution as well as set
up the required machineries and prescribe the
procedure for the ratification of his proposals
by the people?
(3) Is the submission to the people of the
proposed amendments within the time frame
allowed therefor a sufficient and proper,
submission"
I
First Issue
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The threshold question is not at all one of first
impression Specifically on the matter of
proposals to amend the Constitution, this
Court, in Mabanag vs. Lopez Vito (78 Phil. 1),
inceptively announced the dictum that-
Proposal to amend the
Constitution is a highly political
function performed by the
Congress in its sovereign
legislative capacity and
committed to its charges by the
Constitution itself. The exercise of
this power is even independent of
any intervention by the Chief
Executive. If on grounds of
expediency scrupulous attention
of the judiciary be needed to
safeguard public interest, there is
less reason for judicial inquiry into
the validity of a proposal than into
that of a ratification.
In time, however, the validity of the said
pronouncement was eroded. In the
assessment of the Court itself-
The force of this precedent has been
weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil. 818),
Avelino vs. Cuenco (L-2581, March 4 and 14,
1949), Tanada vs. Cuenco (L-10520, February
28, 1957), and Macias vs. Commission on
Elections (L-18684, September 14, 1961).
x x x           x x x          x x x
In short, the issue whether or not a Resolution
of Congress-acting as a constituent assembly-
violates the Constitution is essentially
justiciable, not political, and, hence, subject to
judicial review, and, to the extent this view may
be inconsistent with the stand taken in
Mabanag vs. Lopez Vito the latter should be
deemed modified accordingly. The Members of
the Court are unanimous on this point."
(Gonzales vs. Commission on Elections, et al,
L-28196, November 9, 1967, 21 SCRA 774,
786-787).
The abandonment of the Mabanag vs. Lopez
Vito doctrine appears to have been completed
when, in Javellana vs. Secretary, et al. (L-
36142, March 3l, 1973, 50 SCRA 30), six
members of the Court concurred in the view
that the question of whether the 1973
Constitution was ratified in accordance with the
provisions of Article XV (Amendments) of the
1935 Constitution is inherently and essentially
justiciable.
As elucidated therein, with extensive
quotations from Tanada vs. Cuenco (103 Phil.
1051)-
... the term 'political question'
connotes, in legal parlance, what
it means in ordinarily parlance,
namely, a question of policy in
matters concerning the
government of a State, as a body
politic. In other words, in the
language of Corpus Juris
Secundum (supra), it refers to
'those questions which, under the
Constitution, are to be decided by
the people in their sovereign
capacity, or in regard to which full
discretionary authority has been
delegated to the Legislature or
executive branch of the
government.' It is concerned with
issues dependent upon the
wisdom, not legality, of a
particular measure.'
Accordingly, when the grant of power is
qualified, conditional or subject to limitations,
the issue on whether or not the prescribed
qualifications or conditions have been met, or
the limitations respected, is justiciable or non-
political, the crux of the problem being one of
legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications,
conditions or limitations - particularly those
prescribed or imposed by the Constitution -
would be set at naught." (Javellana vs.
Executive Secretary, supra).
So it is in the situation here presented. The
basic issue is the constitutional validity of the
presidential acts of proposing amendments to
the Constitution and of calling a referendum-
plebiscite for the ratification of the proposals
made. Evidently, the question does not
concern itself with the wisdom of the exercise
of the authority claimed or of the specific
amendments proposed. Instead the inquiry vel
non is focused solely on the existence of the
said power in the President - a question purely
of legality determinable thru interpretation and
construction of the letter and spirit of the
Constitution by the Court as the final arbiter in
the delineation of constitutional boundaries and
the allocation of constitutional powers.
For the Court to shun cognizance of the
challenge herein presented, especially in these
parlous years, would be to abdicate its
constitutional powers, shirk its constitutional
responsibility, and deny the people their
ultimate recourse for judicial determination.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
I have thus no hesitancy in concluding that the
question here presented is well within the
periphery of judicial inquiry.
II
Second Issue
The main question stands on a different
footing; it appears unprecedented both here
and elsewhere. Its solution, I believe, can be
found and unraveled only by a critical
assessment of the existing legal order in the
light of the prevailing political and factual
milieu.
To be sure, there is an impressive array of
consistent jurisprudence on the proposition
that, normally or under normal conditions, a
Constitution may be amended only in accord
with the procedure set forth therein. Hence, if
there be any such prescription for the
amendatory process as invariable there is
because one of the essential parts of a
Constitution is the so-called "constitution of
sovereignty" which comprises the provision or
provisions on the modes in accordance with
which formal changes in the fundamental law
may be effected the same would ordinarily be
the controlling criterion for the validity of the
amendments sought.
Unfortunately, however, during the present
transition period of our political development,
no express provision is extant in the
Constitution regarding the agency or agent by
whom and the procedure by which
amendments thereto may be proposed and
ratified fact overlooked by those who challenge
the validity of the presidential acts in the
premises. This is so because there are at least
two distinctly in the transition from the old
system of government under the 1935
Constitution to the new one established by the
1973 Constitution.
The first stage comprises the period from the
effectivity of the Constitution on January 17,
1973 to the time the National Assembly is
convened by the incumbent President and the
interim President and the interim Prime
Minister are chosen Article XVII, Sections 1
and 3[1]. The existence of this stage as an
obvious fact of the nation's political life was
recognized by the Court in Aquino vs.
Commission on Elections, et al. (L-40004,
January 31, 1975, 62 SCRA 275), when it
rejected the claim that, under the 1973
Constitution, the President was in duty bound
to convene the interim National Assembly soon
after the Constitution took effect.
The second stage embraces the period from
the date the interim National Assembly is
convened to the date the Government
described in Articles VII to IX of the
Constitution is inaugurated, following the
election of the members of the regular National
Assembly (Article XVII, Section 1) and the
election of the regular President and Prime
Minister,. This is as it should be because it is
recognized that the President has been
accorded the discretion to determine when he
shall initially convene the interim National
Assembly, and his decision to defer the
convocation thereof has found overwhelming
support by the sovereign people in two
previous referenda, therein giving reality to an
interregnum between the effectivity of the
Constitution and the initial convocation of the
interim National Assembly, which interregnum,
as aforesaid, constitutes the first stage in the
transition period.
Against this factual backdrop, it is readily
discernible that neither of the two sets of
provisions embodied in the Constitution on the
amendatory process applied during the said
first stage. Thus, Section 15, Article XVII
(Transitory Provisions) provides-
"Sec. 15. The interim National Assembly, upon
special call by the interim Prime Minister, may,
by a majority vote of all its Members, propose
amendments to this Constitution. Such
amendments shall take effect when ratified in
accordance with Article Sixteen hereof."
Patently, the reference to the "interim National
Assembly" and the "interim Prime Minister"
limits the application thereof to the second
stage of the transition period, i.e.,., after the
interim? National Assembly shall have been
convened and the interim Prime Minister shall
have been chosen.
Upon the other hand, the provisions of Article
XVI (Amendments), to wit-
SECTION 1. (1) Any amendment
to, or revision of, this Constitution
may be proposed by the National
Assembly upon a vote of three-
fourths of all its Members, or by a
constitutional convention.
(2) The National Assembly may,
by a vote of two-thirds of all its
Members, call a constitutional
convention or, by a majority vote
of all its Members, submit the
question of ceiling such a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
convention to the electorate in an
election.
SEC. 2. Any amendment to, or
revision of, this Constitution shall
be valid when ratified by a
majority of the votes cast in a
plebiscite which shall be held not
later than three months after the
approval of such amendment or
revision.
unequivocally contemplate amendments after
the regular Government shall have become
fully operative, referring as they do to the
National Assembly which will come into being
only at that time.
In the face of this constitutional hiatus, we are
confronted with the dilemma whether
amendments to the Constitution may be
effected during the aforesaid first stage and, if
in the affirmative, by whom and in what manner
such amendments may be proposed and
ratified.
Susceptibility to change is one of the hallmarks
of an Ideal Constitution. Not being a mere
declaration of the traditions of a nation but
more the embodiment of a people's hopes and
aspirations, its strictures are not unalterable.
They are, instead, dynamic precepts intended
to keep in stride with and attuned to the living
social organism they seek to fashion and
govern. If it is conceded that "the political or
philosophical aphorism of one generation is
doubted by the next and entirely discarded by
the third," then a Constitution must be able to
adjust to the changing needs and demands of
society so that the latter may survive, progress
and endure. On these verities, there can be no
debate.
During the first stage of the transition period in
which the Government is at present - which is
understandably the most critical - the need for
change may be most pressing and imperative,
and to disavow the existence of the right to
amend the Constitution would be sheer political
heresy. Such view would deny the people a
mechanism for effecting peaceful change, and
belie the organic conception of the Constitution
by depriving it of its means of growth. Such a
result obviously could not have been intended
by the framers of the fundamental law.
It seems, however, that the happenstance that
the first period would come to pass before the
convocation of the interim National Assembly
was not anticipated, hence, the omission of an
express mandate to govern the said situation in
so far as amendments are concerned. But such
omission through inadvertence should not,
because it cannot, negate the sovereign power
of the people to amend the fundamental
charter that governs their lives and their future
and perhaps even the very survival of the
nation.
Upon the other hand, it is clear from the afore-
quoted provisions on the amendatory process
that the intent was, instead, to provide a
simpler and more expeditious mode of
amending the Constitution during the transition
period. For, while under Article XVI thereof,
proposals for amendment may be made
directly by the regular National Assembly by a
vote of at least three-fourths of all its members,
under Section 15 of Article XVII, a bare
majority vote of all the members of the National
Assembly would suffice for the purpose. The
relaxation and the disparity in the vote
requirement are revealing. The can only signify
a recognition of the need to facilitate the
adoption of amendments during the second
stage of the transition period so that the interim
National Assembly will be able, in a manner of
speaking, to iron out the kinks in the new
Constitution, remove imperfections therein, and
provide for changed or changing circumstances
before the establishment of the regular
Government. In this contest, therefore, it is
inutile speculation to assume that the
Constitution was intended to render impotent or
ar the effectuation of needful change at an
even more critical period - the first stage. With
greater reason, therefore, must the right and
power to amend the Constitution during the first
stage of te transition period be upheld, albeit
within its express and implied constraints.
Neither can it be successfully argued, in the
same context and in the present posture, that
the Constitution may be amended during the
said first stage only by convening the interim
National Assembly. That is to say and require
that he said stage must first be brought to an
end before any amendment may be proposed
and ratified. Settled jurisprudence does not
square with such a proposition. As aptly noted
in Aquino vs. Commission on Elections, et al.,
supra, the framers of the Constitution set no
deadline for the convening of the interim
National Assembly because they could not
have foreseen how long the crises which
impelled the proclamation and justify the
continued state of martial law would last.
Indeed, the framers committed to the sound
judgment is not subject to judicial review, save
possibly to determine whether arbitrariness has
infected such exercise; absent such a taint, the
matter is solely in the keeping of the President.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
To thus content that only by convening the
interim National Assembly may the Constitution
be amended at this time would effectively
override the judgement vested in the President,
even in default of any he has acted arbitrarily
or gravely abuse his discretion. Furthermore, to
sustain such a contention would not only
negate the mandate so resoundingly
expressed by the people in two national
referenda against the immediate convening of
the interim National Assembly, but as well
deride their overwhelming approval of the
manner in which the President has exercised
the legislative power to issue proclamations,
orders, decrees and instructions having the
stature and force of law.
Given the constitutional stalemate or impasse
spawned by these supervening developments,
the logical query that compels itself for
resolution is: By whom, then, may proposals for
the amendment of the Constitution be made
and in what manner may said proposals be
ratified by the people?
It is conventional wisdom that, conceptually,
the constituent power is not to be confuse with
legislative power in general because the
prerogative to propose amendments to the
Constitution is not in any sense embraced
within the ambit of ordinary law-making. Hence,
there is much to recommend the proposition
that, in default of an express grant thereof, the
legislature - traditionally the delegated
repository thereof - may not claim it under a
general grant of legislative authority. In the
same vein, neither would it be altogether
unassailable to say that because by
constitutional tradition and express allocation
the constituent power under the Constitution is
locate in the law-making agency and at this
stage of the transition period the law-making
authority is firmly recognized as being lodged
in the President, the said constituent power
should now logically be in the hands of te
President who may thus exercise it in place of
the interim National Assembly. Instead,, as
pointed out in Gonzales vs. Commission on
Elections, et al., supra, the power to amend the
Constitution or to propose amendments thereto
... is part of the inherent powers
of the people - as the repository
of sovereignty in a republican
state, such as ours - t o make,
and, hence, to amend their own
Fundamental Law.
As such, it is undoubtedly a power that only the
sovereign people, either directly by themselves
or through their chosen delegate, can wield.
Since it has been shown that the people,
inadvertently or otherwise, have not delegated
that power to inadvertently or otherwise, have
not delegated that power to any instrumentality
during the current stage of our hegira from
crisis to normalcy, it follows of necessity that
the same remains with them for them to
exercise in the manner they see fit and through
the agency they choose. And, even if it were
conceded that - as it is reputedly the rule in
some jurisdictions - a delegation of the
constituent authority amounts to a complete
divestiture from the people of the power
delegated which they may not thereafter
unilaterally reclaim from the delegate, there
would be no violence donde to such rule,
assuming it to be applicable here, inasmuch as
that power, under the environmental
circumstance adverted to, has not been
delegated to anyone in the first place. The
constituent power during the first stage of the
transition period belongs to and remains with
the people, and accordingly may be exercised
by them - how and when - at their pleasure.
At this juncture, a flashback to the recent and
contemporary political ferment in the country
proves revelatory. The people, shocked and
revolted by the "obvious immorality" of the
unabashed manner by which the delegates to
the Constitutional Convention virtually
legislated themselves into office as ipso facto
members of the interim National Assembly by
the mere fiat of voting for the transitory
provisions of the Constitution. and the stark
reality that the unwieldy political monstrosity
that the interim Assembly portended to be
would have proven to be a veritable drain on
the meager financial resources of a nation
struggling for survival, have unequivocally put
their foot down, as it were, on the convocation
thereof. But this patently salutary decision of
the people proved to be double-edged. It
likewise bound the political machinery of the
Government in a virtual straight-jacket and
consigned the political evolution of the nation
into a state of suspended animation. Faced
with the ensuing dilemma, the people
understandably agitated for a solution. Through
consultations in the barangays and sanggunian
assemblies, the instrumentalities through which
the people's voice is articulated in the unique
system of participatory democracy in the
country today, the underpinnings for the
hastening of the return to constitutional
normalcy quickly evolved into an overwhelming
sentiment to amend the Constitution in order to
replace the discredited interim National
Assembly with what the people believe will be
an appropriate agency to eventually take over
the law-making power and thus pave the way
 HUMAN RIGHTS PRELIMFULLTEXT CASES
for the early lifting of martial rule. In pursuit of
this sentiment, and to translate its constraints
into concrete action, the Pambansang
Katipunan ng Barangay, the Pambansang
Katipunan ng mga Kabataang Barangay, the
Lupong Tagapagpaganap of the Katipunan ng
mga Barangay, the Pambansang Katipunan ng
mga Kabataang Barangay the Lupong
Tagapagpaganap of the Katipunan ng mga
Sanggunian, and finally the Batasang Bayan,
to a man and as one voice, have come forward
with definitive proposals for the amendment of
the Constitution, and, choosing the President
the only political arm of the State at this time
through which that decision could be
implemented and the end in view attained as
their spokesman, proposed the amendments
under challenge in the cases at bar.
In the light of this milieu and its imperatives,
one thing is inescapable: the proposals now
submitted to the people for their ratification in
the forthcoming referendum-plebiscite are
factually not of the President; they are directly
those of the people themselves speaking thru
their authorized instrumentalities. The
President merely formalized the said proposals
in Presidential Decree No. 1033. It being
conceded in all quarters that sovereignty
resides in the people and it having been
demonstrated that their constituent power to
amend the Constitution has not been delegated
by them to any instrumentality of the
Government during the present stage of the
transition period of our political development,
the conclusion is ineluctable that their exertion
of that residuary power cannot be vulnerable to
any constitutional challenge as being ultra
vires. Accordingly, without venturing to rule on
whether or not the President is vested with
constituent power as it does not appear
necessary to do so in the premises the
proposals here challenged, being acts of the
sovereign people no less, cannot be said to be
afflicted with unconstitutionality. A fortiori, the
concomitant authority to call a plebiscite and to
appropriate funds therefor is even less
vulnerable not only because the President, in
exercising said authority has acted as a mere
alter ego of the people who made the
proposals, but likewise because the said
authority is legislative in nature rather than
constituent.
III
Third Issue
Little need be said of the claimed insufficiency
and impropriety of the submission of the
proposed amendments for ratification from the
standpoint of time. The thesis cannot be
disputed that a fair submission presupposes an
adequate time lapse to enable the people to be
sufficiently enlightened on the merits or
demerits of the amendments presented for
their ratification or rejection. However,
circumstances there are which unmistakably
demonstrated that the is met. Even if the
proposal appear to have been formalized only
upon the promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are
actually the crystallization of sentiments that for
so long have preoccupied the minds of the
people and their authorized representatives,
from the very lowest level of the political
hierarchy. Hence, unlike proposals emanating
from a legislative body, the same cannot but be
said to have been mulled over, pondered upon,
debated, discussed and sufficiently understood
by the great masses of the nation long before
they ripened into formal proposals.
Besides. it is a fact of which judicial notice may
well be taken that in the not so distant past
when the 1973 Constitution was submitted to
the people for ratification, an all-out campaign,
in which all the delegates of the Constitutional
Convention reportedly participated, was
launched to acquaint the people with the
ramifications and working of the new system of
government sought to be inaugurated
thereunder. It may thus well be assumed that
the people in general have since acquired, in
the least, a working knowledge of the entirety
of the Constitution. The changes now proposed
the most substantial of which being merely the
replacement of the interim National assembly
with another legislative arm for the Government
during the transition period until the regular
National Assembly shall have been constituted
do not appear to be of such complexity as to
require considerable time to be brought home
to the full understanding of the people. And, in
fact, the massive and wide-ranging
informational and educational campaign to this
end has been and still is in full swing, with all
the media the barangay, the civic and sectoral
groups, and even the religious all over the land
in acting and often enthusiastic if not frenetic
involvement.
Indeed, when the people cast their votes on
October 16, a negative vote could very well
mean an understanding of the proposals which
they reject; while an affirmative vote could
equally be indicative Of such understanding
and/or an abiding credence in the fidelity with
which the President has kept the trust they
have confided to him as President and
administrator of martial rule
 HUMAN RIGHTS PRELIMFULLTEXT CASES
IV
Conclusion
It is thus my considered view that no question
viable for this court to pass judgment upon is
posed. Accordingly, I vote for the outright
dismissal of the three petitions at bar.
FERNANDO, J., concurring and dissenting:
These three petitions, the latest in a series of
cases starting from Planas v. Commission on
Elections continuing with the epochal resolution
in Javellana v. Executive Secretary and
followed successively in three crucial
decisions, Aquino v. Ponce Enrile Aquino v.
Commission on Elections, and Aquino v
Military Commission,5 manifest to the same
degree the delicate and awesome character of
the function of judicial review. While previous
rulings supply guidance and enlightenment,
care is to be taken to avoid doctrinaire rigidity
unmindful of altered circumstances and the
urgencies of the times. It is inappropriate to
resolve the complex problems of a critical
period without full awareness of the
consequences that flow from whatever decision
is reached. Jural norms must be read in the
context of social facts, There is need therefore
of adjusting inherited principles to new needs.
For law, much more so constitutional law, is
simultaneously a reflection of and a force in the
society that it controls. No quality then can be
more desirable in constitutional adjudication
than that intellectual and imaginative insight
which goes into the heart of the matter. The
judiciary must survey things as they are in the
light of what they must become It must inquire
into the specific problem posed not only in
terms of the teaching of the past but also of the
emerging political and legal theory, especially
so under a leadership notable for its innovative
approach to social problems and the vigor of its
implementation. This, on the one side. It must
equally be borne in mind through that this
Court must be conscious of the risk inherent in
its being considered as a mere subservient
instrument of government policy however
admittedly salutary or desirable. There is still
the need to demonstrate that the conclusion
reached by it in cases appropriate for its
determination has support in the law that must
be applied. To my mind that was the norm
followed, the conclusion reached being that the
three petitions be dismissed. I am in
agreement. It is with regret however that based
on my reading of past decisions, both
Philippine and American, and more specifically
my concurring opinion in Aquino v. Ponce
Enrile, I must dissent from the proposition set
forth in the able and scholarly opinion of
Justice Martin that there is concentration of
power in the President during a crisis
government. Consequently, I cannot see my
way clear to accepting the view that the
authority to propose amendments is not open
to question. At the very least, serious doubts
could be entertained on the matter.
1. With due respect then, I have to dissociate
myself from my brethren who would rule that
governmental powers in a crisis government,
following Rossiter, "are more or less
concentrated in the President." Adherence to
my concurring and dissenting opinion in Aquino
v. Ponce Enrile leaves me no choice.
It must be stated at the outset that with the
sufficiency of doctrines supplied by our past
decisions to point the way to what I did
consider the appropriate response to the basic
issue raised in the Aquino and the other
habeas corpus petitions resolved jointly, it was
only in the latter portion of my opinion that
reference was made to United States Supreme
Court pronouncements on martial law, at the
most persuasive in character and rather few in
number "due no doubt to the, absence in the
American Constitution of any provision
concerning it." 7 It was understandable then
that it was only after the landmark Ex parte
Milligan case, that commentators like Cooley in
1868 and Watson in 1910 paid attention,
minimal by that, to the subject." It was next set
forth that in the works on American
constitutional law published in this century
specially after the leading cases of cases
Sterling v. Constant in and Duncan v.
Kahanamoku, "there was a fuller treatment of
the question of martial law While it is the
formulation of Willoughby that for me is most
acceptable, my opinion did take note that
another commentator, Burdick, came out
earlier with a similar appraisal.10 Thus: "So
called martial law, except in occupied territory
of an enemy is merely the calling in of the aid
of military forces by the executive, who is
charged with the enforcement of the law, with
or without special authorization by the
legislature. Such declaration of martial law
does not suspend the civil law, though it may
interfere with the exercise of one's ordinary
rights. The right to call out the military forces to
maintain order and enforce the law is simply
part of the Police power, It is only justified
when it reasonably appears necessary, and
only justifies such acts as reasonably appear
necessarily to meet the exigency, including the
arrest, or in extreme cases the. killing of those
who create the disorder or oppose the
authorities. When the exigency is over the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
members of the military forces are criminally
and civilly habit for acts done beyond the scope
of reasonable necessity. When honestly and
reasonably coping with a situation of
insurrection or riot a member of the military
forces cannot be made liable for his acts, and
persons reasonably arrested under such
circumstances will not, during the insurrection
or riot, be free by writ of habeas
corpus." 11 When the opinion cited Willoughby's
concept of martial law, stress was laid on his
being "Partial to the claims of liberty."12 This is
evident in the explicit statement from his work
quoted by me: "There is, then, strictly
speaking, no such thing in American law as a
declaration of martial law whereby military law
is substituted for civil law. So-called
declarations of martial law are, indeed, often
made but their legal effect goes no further than
to warn citizens that the military powers have
been called upon by the executive to assist him
in the maintenance of law and order, and that,
while the emergency lasts, they must, upon
pain of arrest and punishment not commit any
acts which will in any way render more difficult
the restoration of order and the enforcement of
law. Some of the authorities stating
substantially this doctrine are quoted in the
footnote below Nor did I stop there. The words
of Willis were likewise cited: "Martial law
proper, that is, military law in case of
insurrection, riots, and invasions, is not a
substitute for the civil law, but is rather an aid
to the execution of civil law. Declarations of
martial law go no further than to warn citizens
that the executive has called upon the military
power to assist him in the maintenance of law
and order. While martial law is in force, no new
powers are given to the executive and no civil
rights of the individual, other than the writ of
habeas corpus, are suspended. The relations
between the citizen and his stature
unchanged."14
The conclusion reached by me as to the state
of American federal law on the question of
martial law was expressed thus: 4'1 It is readily
evident that even when Milligan supplied the
only authoritative doctrine, Burdick and
Willoughby did not ignore the primacy of civil
liberties. Willis wrote after Sterling. It would
indeed be surprising if his opinion were
otherwise. After Duncan, such an approach
becomes even more strongly fortified.
Schwartz, whose treatise is the latest to be
published, has this summary of what he
considers the present state of American law:
'The Milligan and Duncan cases show plainly
that martial law is the public law of necessity.
Necessities alone calls it forth, necessity
justifies its exercise; and necessities measures
the extended degree to which it may be It is,
the high Court has affirmed, an unbending rule
of law that the exercise of military power,
where the rights of the citizen are concerned,
may, never be pushed beyond what the
exigency requires. If martial law rule survive
the necessities on which alone it rests, for even
a single minute it becomes a mere exercise of
lawless violence.' Further: Sterling v.
Constantin is of basic importance. Before it, a
number of decisions, including one the highest
Court, went or on the theory that the executive
had a free hand in taking martial law measures.
Under them, it has been widely supposed that
in proclamation was so far conclusive that any
action taken under it was immune from judicial
scrutiny. Sterling v. Constantin definitely
discredits these earlier decisions and the
doctrine of conclusiveness derived from them.
Under Sterling v. Constantin, where martial law
measures impinge upon personal or property
rights-normally beyond the scope of military
power, whose intervention is lawful only
because an abnormal Actuation has made it
necessary the executive's ipse dixit is not of
itself conclusive of the necessity.'"15
There was likewise an effort on my part to
show what for me is the legal effect of martial
law being expressly provided for in the
Constitution rather than being solely predicated
on the common law power based on the urgent
need for it because of compelling
circumstances incident to the state of actual
clash of arms: "It is not to be lost sight of that
the basis for the declaration of martial law in
the Philippines is not mere necessity but an
explicit constitutional provision. On the other
hand, Milligan, which furnished the foundation
for Sterling and Duncan had its roots in the
English common law. There is pertinence
therefore in ascertaining its significance under
that system. According to the noted English
author, Dicey: 'Martial law,' in the proper sense
of that term, , in which - it means the
suspension of ordinary law and the temporary
government of a country or parts of it be
military tribunals, is unknown to the law of
England. We have nothing equivalent to what
is called in France the "Declaration of the State
of Siege," under which the authority ordinarily
vested in the civil power for the maintenance of
order and police passes entirely to the army
(autorite militaire). This is an unmistakable
proof of the permanent supremacy of the law
under our constitution. There was this
qualification: 'Martial law is sometimes
employed as a name for the common law right
of the Crown and its servants to repel force by
force in the case of invasion, insurrection, riot,
or generally of any violent resistance to the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
law. This right, or power, is essential to the
very existence of orderly government, and is
most assuredly recognized in the most ample
manner by the law of England. It is a power
which has in itself no special connection with
the existence of an armed force. The Crown
has the right to put down breaches of the
peace. Every subject, whether a civilian or a
soldier, whether what is called a servant of the
government,' such for example as a policeman,
or a person in no way connected with the
administration, not only has the right, but is, as
a matter of legal duty, bound to assist in putting
down breaches of the peace. No doubt
policemen or soldiers are the persons who, as
being specially employed in the maintenance of
order, are most generally called upon to
suppress a riot, but it is clear that all loyal
subjects are bound to take their part in the
suppression of riots."16
Commitment to such an approach results in my
inability to subscribe to the belief that martial
law in terms of what is provided both in the
1935 and the present Constitution, affords
sufficient justification for the concentration of
powers in the Executive during periods of
crisis. The better view, considering the juristic
theory on which our fundamental law rests is
that expressed by Justice Black in Duncan v.
Kahanamoku: "Legislatures and courts are not
merely cherished American institutions; they
are indispensable to our government. 17 If there
has been no observance of such a cardinal
concept at the present, it is due to the fact that
before the former Congress could meet in
regular session anew, the present Constitution
was adopted, abolishing it and providing for an
interim National Assembly, which has not been
convened.18 So I did view the matter.
2. Nor did I ignore Rossiter in my Aquino v.
Ponce Enrile opinion. Reference was made to
the first chapter on his work on Constitutional
Dictatorship where he spoke of martial rule as
"a device designed for use in the crisis of
invasion or rebellion. It may be most precisely
defined as an extension of military government
to the civilian population, the substitution of the
will of a military commander for the will of the
people's elected government."19 Since, for me
at least, the Rossiter characterization of martial
law has in it more of the common law
connotation, less than duly mindful of the jural
effects of its inclusion in the Constitution itself
as a legitimate device for coping with
emergency conditions in times of grave danger,
but always subject to attendant limitations in
accordance with the fundamental postulate of a
charter's supremacy, I felt justified in
concluding: "Happily for the Philippines, the
declaration of martial law lends itself to the
interpretation that the Burdick, Willoughby,
Willis, Schwartz formulations paying due
regard to the primacy of liberty possess
relevance. lt cannot be said that the martial rule
concept of Rossiter, latitudinarian in scope, has
been adopted, even on the assumption that it
can be reconciled with our Constitution. What
is undeniable is that President Marcos has
repeatedly maintained that Proclamation No.
1081 was precisely based on the Constitution
and that the validity of acts taken there under
could be passed upon by the Supreme court.
For me that is quite reassuring, persuaded as I
am likewise that the week- of Rossiter is
opposed to the fundamental concept of our
polity, which puts a premium on freedom."20
3. Candor and accuracy compel the admission
that such a conclusion his to be qualified. For
in the opinion of the Court in the aforecited
Aquino v. Commission on Elections, penned by
Justice Makasiar, the proposition was
expressly affirmed "that as Commander-in-
Chief and enforcer or administrator of martial
law, the incumbent President of the Philippines
can reclamations, orders and decrees during
the period Martial Law essential to the security
and preservation of the Republic, to the
defense of the political and social liberties of
the people and to the institution of reforms to
prevent the resurgence of rebellion or
insurrection or secession or the threat thereof
as well as to meet the impact of a worldwide
recession, inflation or economic crisis which
presently threatens all nations including highly
developed countries." 21 To that extent,
Rossiter's view mainly relied upon, now
possesses Juristic significant in this jurisdiction.
What, for me at least, gives caused for concern
is that with the opinion of the Court this
intrusion of what I would consider an alien
element in the limited concept of martial law as
set forth in the Constitution would be allowed
further incursion into the corpus of the law, with
the invocation of the view expressed in the last
chapter of his work approving tile
"concentration of governmental power in a
democracy [as] a corrective to the crisis
inefficiencies inherent in the doctrine of the
separation of powers." 22 It is to the credit of the
late Professor Rossiter as an objective scholar
that in the very same last chapter, just three
pages later, he touched explicitly on the
undesirable aspect of a constitutional
dictatorship. Thus: "Constitutional Dictatorship
is a dangerous thing. A declaration of martial
law or the passage of an enabling act is a step
which must always be feared and sometimes
bitterly resisted, for it is at once an admission
of the incapacity of democratic institutions to
 HUMAN RIGHTS PRELIMFULLTEXT CASES
defend the order within which they function and
a too conscious employment of powers and
methods long ago outlawed as destructive of
constitutional government. Executive
legislation, state control of popular liberties,
military courts, and arbitrary executive action
were governmental features attacked by the
men who fought for freedom not because they
were inefficient or unsuccessful, but because
they were dangerous and oppressive. The
reinstitution of any of these features is a
perilous matter, a step to be taken only when
the dangers to a free state will be greater if the
dictatorial institution is not adopted."23
4. It is by virtue of such considerations that I
find myself unable to share the view of those of
my brethren who would accord recognition to
the Rossiter concept of concentration of
governmental power in the Executive during
periods of crisis. This is not to lose sight of the
undeniable fact that in this country through the
zeal, vigor, and energy lavished on projects
conducive to the general welfare, considerable
progress has been achieved under martial rule.
A fair summary may be found in a recent
address of the First Lady before the delegates
to the 1976 international Monetary Fund-World
Bank Joint Annual Meeting: "The wonder is
that so much has been done in so brief a time.
Since September 1972, when President
Marcos established the crisis government,
peace and order have been restored in a
country once avoided as one of the most
unsafe in the world. We have liberated millions
of Filipino farmers from the bondage of
tenancy, in the most vigorous and extensive
implementation of agrarian reform."24 Further,
she said: "A dynamic economy has replaced a
stagnant order, and its rewards are distributed
among the many, not hoarded by a few. Our
foreign policy, once confined by fear and
suspicion to a narrow alley of self-imposed
isolation, now travels the broad expressways of
friendship and constructive interaction with the
whole world, these in a new spirit of confidence
and self-reliance. And finally, forced to work out
our own salvation, the Filipino has re-
discovered the well-springs of his strength and
resilience As Filipinos, we have found our true
Identity. And having broken our crisis of
Identity, we are no longer apologetic and
afraid. "25 The very Idea of a crisis, however,
signifies a transitory, certainly not a permanent,
state of things. President Marcos accordingly
has not been hesitant in giving utterance to his
conviction that full implementation of the
modified parliamentary system under the
present Constitution should not be further
delayed. The full restoration of civilian rule can
thus be expected. That is more in accord with
the imperatives of a constitutional order. It
should not go unnoticed either that the
President has referred to the present regime as
one of "constitutional authoritarianism." That
has a less objectionable ring, authority being
more Identified with the Idea of law, as based
on right, the very antithesis of naked force,
which to the popular mind is associated with
dictatorship, even if referred to as
"constitutional."
For me likewise, that equally eminent scholar
Corwin, also invoked in the opinion of the
Court, while no doubt a partisan of d strong
Presidency, was not averse to constitutional
restraints even during periods of crisis. So I
would interpret this excerpt from the fourth
edition of his classic treatise on the Presidency:
"A regime of martial law may be
compendiously, if not altogether accurately,
defined as one in which the ordinary law, as
administered by the ordinary courts, is
superseded for the time being by the will of a
military commander. It follows that, when
martial law is instituted under national
authority, it rests ultimately on the will of the
President of the United States in his capacity
as Commander-in-Chief. It should be added at
once, nevertheless, that the subject is one in
which the record of actual practice fails often to
support the niceties of theory. Thus, the
employment of the military arm in the
enforcement of the civil law does not invariably,
or even usually, involve martial law in the strict
sense, for, as was noted in the preceding
section, soldiers are often placed simply at the
disposal and direction of the civil authorities as
a kind of supplementary police, or posse
comitatus on the other hand be reason of the
discretion that the civil authorities themselves
are apt to vest in the military in any emergency
requiring its assistance, the line between such
an employment of the military and a regime of
martial law is frequently any but a hard and fast
one. And partly because of these ambiguities
the conception itself of martial law today
bifurcates into two conceptions, one of which
shades off into military government and the
other into the situation just described, in which
the civil authority remains theoretically in
control although dependent on military aid.
Finally, there is the situation that obtained
throughout the North during the Civil War,
when the privilege of the writ of habeas corpus
was suspended as to certain classes of
suspects, although other characteristics of
martial law were generally absent."26
It is by virtue of the above considerations that,
with due respect to the opinion of my brethren,
I cannot yield assent to the Rossiter view of
 HUMAN RIGHTS PRELIMFULLTEXT CASES
concentration of governmental powers in the
Executive during martial law.
5 There is necessity then, for me at least, that
the specific question raised in all three petitions
be squarely faced. It is to the credit of the
opinion of the Court that it did so. The basic
issue posed concerns the boundaries of the
power of the President during this period of
martial law, more precisely whether it covers
proposing amendments to the Constitution.
There is the further qualification if the stand of
respondents be taken into account that the
interim National Assembly has not been
convened and is not likely to be called into
session in deference to the wishes of the
people as expressed in three previous
referenda. It is the ruling of the majority that the
answer be in the affirmative, such authority
being well within the area of presidential
competence. Again I find myself unable to join
readily in that conviction. It does seem to me
that the metes and bounds of the executive
domain, while still recognizable, do appear
blurred. This is not to assert that there is
absolutely no basis for such a conclusion,
sustained as it is by a liberal construction of the
principle that underlies Aquino v. Commission
on Elections as to the validity of the exercise of
the legislative prerogative by the President as
long as the interim National Assembly is not
For me, the stage of certitude has not been
reached. I cannot simply ignore the vigorous
plea of petitioners that there is a constitutional
deficiency consisting in the absence of any
constituent power on the part of the President,
the express provision of the Constitution
conferring it on the by team National
Assembly.27 The learned advocacy reflected in
the pleadings as well as the oral discourse of
Solicitor General Estelito P. Mendoza 21 failed
to erase the grave doubts in my mind that the
Aquino doctrine as to the possession of
legislative competence by the President during
this period of transition with the interim
lawmaking body not called into session be thus
expanded. The majority of my brethren took
that step. I am not prepared to go that far. I will
explain why.
The way for me, is beset with obstacles. In the
first place, such an approach would lose sight
of the distinction between matters legislative
and constituent. That is implicit in the treatise
on the 1935 Constitution by Justices Malcolm
and Laurel In their casebook published the
same year, one of the four decisions on the
subject of constitutional amendments is
Ellingham v. Dye 31 which categorically
distinguished between constituent and
legislative powers. Dean Sinco, a well-known
authority on the subject, was quite explicit.
Thus: "If there had been no express provision
in the Constitution granting Congress the
power to propose amendments, it would be
outside its authority to assume that power.
Congress may not claim it under the general
grant of legislative power for such grant does
not carry with it the right 'to erect the state,
institute the form of its government,' which is
considered a function inherent in the people.
Congressional law- making authority is limited
to the power of approving the laws 'of civil
conduct relating to the details and particulars of
the government instituted,' the government
established by the people."12 If that distinction
be preserved, then for me the aforecited
Aquino decision does not reach the heart of the
matter. Nor is this all. In the main opinion of
Justice Makasiar as well as that of the then
Justice, now Chief Justice, Castro, support for
the ruling that the President cannot be deemed
as devoid of legislative power during this
transition stage is supplied by implications from
explicit constitutional provisions.13 That is not
the case with the power to propose
amendments. It is solely the interim National
Assembly that is mentioned. That is the barrier
that for me is well-nigh insurmountable. If I limit
myself to entertaining doubts rather than
registering a dissent on this point, it is solely
because of the consideration, possessed of
weight and significance, that there may be
indeed in this far-from-quiescent and static
period a need for al. amendments. I do not feel
confident therefore that a negative vote on my
part would be warranted. What would justify the
step taken by the President, even if no
complete acceptance be accorded to the view
that he was a mere conduit of the barangays
on this matter, is that as noted in both qualified
concurrences by Justices Teehankee and
Munoz Palma in Aquino, as far as the
legislative and appropriately powers are
concerned, is the necessity that unless such
authority be recognized, there may be
paralyzation of governmental activities, While
not squarely applicable, such an approach has,
to my mind, a persuasive quality as far as the
power to propose amendments is concerned.
Thus I would confine myself to the expression
of serious doubts on the question rather than a
dissent.
6. The constitutional issue posed as thus
viewed leaves me free to concur in the result
that the petitions be dismissed. That is to
accord respect to the principle that judicial
review goes no further than to checking clear
infractions of the fundamental law, except in
the field of human rights where a much greater
 HUMAN RIGHTS PRELIMFULLTEXT CASES
vigilance is required, That is to make of the
Constitution a pathway to rather than a barrier
against a desirable objective. -As shown by my
concurring and dissenting opinion in Tolentino
Commission on Elections '34 a pre-martial law
decision, the fundamental postulate that
sovereignty resides in the people exerts a
compelling force requiring the judiciary to
refrain as much as possible from denying the
people the opportunity to make known their
wishes on matters of the utmost import for the
life of the nation, Constitutional amendments
fall in that category. I am fortified in that
conviction by the teaching of persuasive
American decisions There is reinforcement to
such a conclusion from retired Chief Justice
Concepcion's concurring and dissenting
opinion in Aytona v. Castillo,17 Which I
consider applicable to the present situation.
These are his words: "It is well settled that the
granting of writs of prohibition and mandamus
is ordinarily within the sound discretion of the
courts, to be exercised on equitable principles,
and that said writs should be issued when the
right to the relief is clear * * by As he noted in
his ponencia in the later case of Gonzales v.
Hechanova,19 an action for prohibition, while
petitioner was sustained in his stand, no
injunction was issued. This was evident in the
dispositive portion where judgment was
rendered "declaring that respondent Executive
Secretary had and has no power to authorize
the importation in question; that he exceeded
his jurisdiction in granting said authority; that
said importation is not sanctioned by law and is
contrary to its provisions; and that, for lack of
the requisite majority, the injunction prayed for
must be and is, accordingly, denied." 40 With
the illumination thus supplied, it does not
necessarily follow that even a dissent on my
part would necessarily compel that I vote for
the relief prayed for. Certainly this is not to
belittle in any way the action taken by
petitioners in filing these suits. That, for me, is
commendable. It attests to their belief in the
rule of law. Even if their contention as to lack of
presidential power be accepted in their entirety,
however, there is still discretion that may be
exercised on the matter, prohibition being an
equitable remedy. There are, for me, potent
considerations that argue against acceding to
the plea. With the prospect of the interim
National Assembly being convened being dim,
if not non- existent, if only because of the
results in three previous referenda, there would
be no constitutional agency other than the
Executive who could propose amendments,
which, as noted. may urgently press for
adoption. Of even greater weight, to my mind,
is the pronouncement by the President that the
plebiscite is intended not only to solve a
constitutional anomaly with the country devoid
of a legislative body but also to provide. the
machinery be which the termination of martial
law could be hastened. That is a
consummation devoutly to be wished. That
does militate strongly against the stand of
petitioners. The obstruction they would pose
may be fraught with pernicious consequences.
It may not be amiss to refer anew to what I
deem the cardinal character of the jural
postulate explicitly affirmed in both the 1935
and the present Constitutions that sovereignty
resides in the people. So I made clear in
Tolentino v. Commission on Elections and
thereafter in my dissent in Javellana v. The
Executive Secretary" and my concurrence in
Aquino v. Commission on Elections. 42 The
destiny of the country lies in their keeping. The
role of leadership is not to be minimized. It is
crucial it is of the essence. Nonetheless, it is
their will, if given expression in a manner
sanctioned by law and with due care that there
be no mistake in its appraisal, that should be
controlling. There is all the more reason then to
encourage their participation in the power
process. That is to make the regime truly
democratic. Constitutional orthodoxy requires,
however, that the fundamental law be followed.
So I would interpret
Laski,   Corwin,   Lerner, , Bryn-Jones, 46 and
43 44 45
McIver.47
7. There is reassurance in the thought that this
Court has affirmed its commitment to the
principle that the amending process gives rise
to a justiciable rather than a political question.
So, it has been since the leading case of
Gonzales v. Commission on Election S.48 It has
since then been followed in Tolentino v.
Commission on Elections 49 Planas v.
Commission on Elections," and lastly, in
Javellana v. The Executive Secretary This
Court did not heed the vigorous plea of the
Solicitor General to resurrect the political
question doctrine announced in Mabanag v.
Lopez Vito. 52 This is not to deny that the
federal rule in the United States as set forth in
the leading case of Coleman v.
Miller , 53 a 1939 decision, and relatively recent
State court decisions, supply ammunition to
such a contention.,51 That may be the case in
the United States, but certainly not in this
jurisdiction. Philippine constitutional tradition is
to the contrary. It can trace its origin to these
words in the valedictory address before the
1934-35 Constitutional Convention by the
illustrious Claro M. Recto: "It is one of the
paradoxes a democracy that the people of
times place more confidence in
instrumentalities of the State other than those
directly chosen by them for the exercise of their
 HUMAN RIGHTS PRELIMFULLTEXT CASES
sovereignty It can be said with truth, therefore,
that there has invariably been a judicial
predisposition to activism rather than self-
restraint. The thinking all these years has been
that it goes to the heart of constitutionalism. It
may be said that this Court has shunned the
role of a mere interpreter; it did exercise at
times creative power. It has to that extent
participated in the molding of policy, It has
always recognized that in the large and
undefined field of constitutional law,
adjudication partakes of the quality of
statecraft. The assumption has been that just
because it cannot by itself guarantee the
formation, much less the perpetuation of
democratic values or, realistically, it cannot
prevail against the pressure of political forces if
they are bent in other directions. it does not
follow that it should not contribute its thinking to
the extent that it can. It has been asked, it will
continue to be asked, to decide momentous
questions at each critical stage of this nation's
life.
There must be, however, this caveat. Judicial
activism gives rise to difficulties in an era of
transformation and change. A society in flux
calls for dynamism in "he law, which must be
responsive to the social forces at work. It
cannot remain static. It must be sensitive to life.
This Court then must avoid the rigidity of legal
Ideas. It must resist the temptation of allowing
in the wasteland of meaningless abstractions. It
must face stubborn reality. It has to have a feel
for the complexities of the times. This is not to
discount the risk that it may be swept too far
and too fast in the surge of novel concepts.
The past too is entitled to a hearing; it cannot
just be summarily ignored. History still has its
uses. It is not for this Court to renounce the
virtue of systematic jural consistency. It cannot
simply yield to the sovereign sway of the
accomplished fact. It must be deaf to the
dissonant dialectic of what appears to be a
splintered society. It should strive to be a factor
for unity under a rule of law. There must be, on
its part, awareness of the truth that a new
juridical age born before its appointed time may
be the cause of unprecedented travail that may
not end at birth. It is by virtue of such
considerations that I did strive for a confluence
of principle and practicality. I must confess that
I did approach the matter with some misgivings
and certainly without any illusion of
omniscience. I am comforted by the thought
that immortality does not inhere in judicial
opinions. 8. 1 am thus led by my studies on the
subject of constitutional law and, much more
so, by previous judicial opinions to concur in
the dismissal of the petitions. If I gave
expression to byes not currently fashionable, it
is solely due to deeply-ingrained beliefs.
Certainly, I am the first to recognize the worth
of' the social and economic reforms so needed
by the troubled present that have been
introduced and implemented. There is no
thought then of minimizing, much less of
refusing to concede, the considerable progress
that has been made and the benefits that have
been achieved under this Administration.
Again, to reiterate one of my cherished
convictions, I certainly approve of the
adherence to the fundamental principle of
popular sovereignty which, to be meaningful
however, requires both freedom in its
manifestation and accuracy in ascertaining
what it wills. Then, too, it is fitting and proper
that a distinction was made between two
aspects of the coming poll, the referendum and
the plebiscite. It is only the latter that is
impressed with authoritative force. So the
Constitution requires. Lastly, there should be,
as I did mention in my concurrence in Aquino v.
Commission on Elections,56 full respect for
free speech and press, free assembly and free
association. There should be no thought of
branding the opposition as the enemy and the
expression of its views as anathema, Dissent, it
is fortunate to note, has been encouraged. It
has not been Identified with disloyalty. That
ought to be the case, and not solely due to
presidential decrees. Constructive criticism is
to be welcomed not so much because of the
right to be heard but because there may be
something worth hearing. That is to ensure a
true ferment of Ideas, an interplay of
knowledgeable minds. There are though well-
defined limits, One may not advocate disorder
in the name of protest, much less preach
rebellion under the cloak of dissent.. What I
mean to stress is that except on a showing of
clear and present danger, there must be
respect for the traditional liberties that make a
society truly free.
TEEHANKEE, J., dissenting:
1. On the merits: I dissent from the majority's
dismissal of the petitions for lack of merit and
vote to grant the petitions for the following
reasons and considerations: 1. It is undisputed
that neither the 1935 Constitution nor the 1973
Constitution grants to the incumbent President
the constituent power to propose and approve
amendments to the Constitution to be
submitted to the people for ratification in a
plebiscite. The 1935 Constitution expressly
vests the constituent power in Congress, be a
three-fourths vote of all its members, to
propose amendments or call a constitutional
convention for the purpose The 1973
Constitution expressly vests the constituent
 HUMAN RIGHTS PRELIMFULLTEXT CASES
power in the regular National Assembly to
propose amendments (by a three-fourths vote
of all its members) or "call a constitutional
convention" (by a two-thirds vote of all its
members) or "submit the question of calling
such convention to the electorate in an
election" (by a majority vote of all its
members ) .2
The transitory provisions of the 1973
Constitution expressing vest the constituent
power during the period of transition in the
interim National Assembly "upon special call be
the Prime Minister (the incumbent President
3)... by a majority ore of all its members (to)
propose amendments."
Since the Constitution provides for the
organization of the essential departments of
government, defines and delimits the powers of
each and prescribes the manner of the
exercise of such powers, and the constituent
power has not been granted to but has been
withheld from the President or Prime Minister, it
follows that the President's questioned
decrease proposing and submitting
constitutional amendments directly to the
people (without the intervention of the interim
National Assembly in whom the power is
expressly vested) are devoid of constitutional
and legal basis.
2. The doctrine in the leading case of Tolentino
vs. Comelec is controlling in the case at bar In
therein declaring null and void the acts of the
1971 Constitutional Convention and of the
Comelec in calling a plebiscite with the general
elections scheduled for November 8, 1971 for
the purpose of submitting for the people's
ratification an advance amendment reducing
the voting age from 21 years to 18 years, and
issuing writs of prohibition and injunction
against the holding of the plebiscite, this Court
speaking through Mr. Justice Barredo ruled
that --The Constitutional provisions on
amendments "dealing with the procedure or
manner of amending the fundamental law are
binding upon the Convention and the other
departments of the government, (land) are no
less binding upon the people
As long as an amendment is
formulated and submitted under
the aegis of the present Charter,
any proposal for such
amendment which is not in
conformity with the letter, spirit
and intent of the Charter for
effecting amendments, cannot
receive the sanction of this
Court ;8
The real issue here cannot be whether or not
the amending process delineated by the
present Constitution may be disregarded in
favor of allowing the sovereign people to
express their decision on the proposed
amendments, if only because it is evident that
the very Idea of departing from the
fundamental law is anachronistic in the realm
of constitutionalism and repugnant to the
essence of the rule of law,"; 9 and
-Accordingly barred the plebiscite as improper
and premature, since "the provisional nature of
the proposed amendments and the manner of
its submission to the people for ratification or
rejection" did not "conform with the mandate of
the people themselves in such regard, as
expressed in the Constitution itself', 10 i.e. the
mandatory requirements of the amending
process as set forth in the Article on
Amendments.
3. Applying the above rulings of Tolentino to
the case at bar, mutatis, mutandis, it is clear
that where the proposed amendments are
violative of the Constitutional mandate on the
amending process not merely for being a
"partial amendment" of a "temporary or
provisional character" (as in Tolentino) but
more so for not being proposed and approved
by the department vested by the Constitution
with the constituent power to do so, and hence
transgressing the substantive provision that it is
only the interim National Assembly, upon
special call of the interim Prime Minister, bu a
majority vote of all its members that may
propose the amendments, the Court must
declare the amendments proposals null and
void.
4. This is so because the Constitution is a
"superior paramount law, unchangeable by
ordinary means" 11 but only by the particular
mode and manner prescribed therein by the
people. As stressed by Cooley, "by the
Constitution which they establish, (the people)
not only tie up the hands of their official
agencies but their own hands as well; and
neither the officers of the State, nor the whole
people as an aggregate body, are at liberty to
take action in opposition to this fundamental
law." 12
The vesting of the constituent power to
propose amendments in the legislative body
(the regular National Assembly) or the interim
National Assembly during the transition period)
or in a constitutional convention called for the
purpose is in accordance with universal
practice. "From the very necessity of the case"
Cooley points out "amendments to an existing
 HUMAN RIGHTS PRELIMFULLTEXT CASES
constitution, or entire revisions of it, must be
prepared and matured by some body of
representatives chosen for the purpose. It is
obviously impossible for the whole people to
meet, prepare, and discuss the proposed
alterations, and there seems to be no feasible
mode by which an expression of their will can
be obtained, except by asking it upon the
single point of assent or disapproval." This
body of representatives vested with the
constituent - power "submits the result of their
deliberations" and "puts in proper form the
questions of amendment upon which the
people are to pass"-for ratification or
rejection.13
5. The Court in Tolentino thus rejected the
argument "that the end sought to be achieved
is to be desired" and in denying
reconsideration in paraphrase of the late Claro
M. Recto declared that "let those who would
put aside, invoking grounds at best
controversial, any mandate of the fundamental
purportedly in order to attain some laudable
objective bear in mind that someday somehow
others with purportedly more laudable
objectives may take advantage of the
precedent and continue the destruction of the
Constitution, making those who laid down the
precedent of justifying deviations from the
requirements of the Constitution the victims of
their own folly."
This same apprehension was echoed by now
retired Justice Calixto O. Zaldivar in his
dissenting opinion in the Ratification
14
cases   that "we will be opening the gates for a
similar disregard to the Constitution in the
future. What I mean is that if this Court now
declares that a new Constitution is now in force
because the members of the citizens
assemblies had approved said new
Constitution, although that approval was not in
accordance with the procedure and the
requirements prescribed in the 1935
Constitution, it can happen again in some
future time that some amendments to the
Constitution may be adopted, even in a manner
contrary to the existing Constitution and the
law, and then said proposed amendments is
submitted to the people in any manner and
what will matter is that a basis is claimed that
there was approval by the people. There will
not be stability in our constitutional system, and
necessarily no stability in our government."
6. It is not legally tenable for the majority,
without overruling the controlling precedent of
Tolentino (and without mustering the required
majority vote to so overrule) to accept the
proposed; amendments as valid
notwithstanding their being "not in conformity
with the letter, spirit and intent of the provision
of the Charter for effecting amendments" on
the reasoning that "If the President has been
legitimately discharging the legislative functions
of the interim National Assembly, there is no
reason why he cannot validly discharge the
functions."15
In the earlier leading case of Gonzales vs.
Comelec16, this Court speaking through now
retired Chief Justice Roberto Concepcion,
pointer out that "Indeed, the power to
Congress"17 or to the National
Assembly.18 Where it not for the express grant
in the Transitory Provisions of the constituent
power to the interim National Assembly, the
interim National Assembly could not claim the
power under the general grant of legislative
power during the transition period.
The majority's ruling in the Referendum
cases19 that the Transitory Provision in section
3(2) recognized the existence of the authority
to legislate in favor of the incumbent President
during the period of martial law manifestly
cannot be stretched to encompass the
constituent power as expressly vested in the
interim National Assembly in derogation of the
allotment of powers defined in the Constitution.
Paraphrasing Cooley on the non-delegation of
legislative power as one of the settled maxims
of constitutional law, 20 the contituent power
has been lodged by the sovereign power of the
people with the interim National Assembly
during the transition period and there it must
remain as the sole constitutional agency until
the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel
in the 1936 landmak case of Angara vs.
Electoral Commissioner21, "(T)he Constitution
sets forth in no uncertain language and
restrictions and limitations upon governmental
powers and agencies. If these restrictions and
limitations are transcended it would be
inconceivable if the Constitution had not
provided for a mechanism by which to direct
the course of government along constitutional
channels, for then the distribution of powers
sentiment, and the principles of good
government mere political apothegms.
Certainly, the limitations and restrictions
embodied in our Constitution are real as they
should be in any living Constitution".
7. Neither is the justification of "constitutional
impasses" tenable. The sentiment of the
people against the convening of the interim
National Assembly and to have no elections for
 HUMAN RIGHTS PRELIMFULLTEXT CASES
"at least seven (7) years" Concededly could not
ament the Constitution insofar as the interim
National Assembly is concerned (since it
admittendly came into existence "immediately"
upon the proclamation of ratification of the
1973 Constitution), much less remove the
constituent power from said interim National
Assembly.
As stressed in the writer's separate opinion in
the Referendum cases22, "(W)hile it has been
advanced that the decision to defer the initial
convocation of the interim National Assembly
was supported by the results of the referendum
in January, 1973 when the people voted
against the convening of the interim National
Assembly for at least seven years, such
sentiment cannot be given any legal force and
effect in the light of the State's admission at the
hearing that such referendums are merely
consultative and cannot amend the
Constitution or Provisions which call for the
'immediate existence' and 'initial convening of
the interim National Assembly to 'give priority
to measures for the orderly transition from the
presidential to the parliamentary system' and
the other urgent measures enumerated in
section 5 thereof".
While the people reportedly expressed their
mandate against the convening of the interim
National Assembly to dischange its legislative
tasks during the period of transition under
martial law, they certainly had no opportunity
and did not express themselves against
convening the interim National Assembly to
discharge the constituent power to propose
amendments likewise vested in it by the
people's mandate in the Constitution.
In point of fact, when the holding of the October
16, 1976 referendum was first announced, the
newspapers reported that among the seven
questions proposed by the sanggunian and
barangay national executive committies for the
referendum was the convening of the interim
National Assembly.23
It was further reported that the proposals which
were termed tentative "will be discussed and
studied by (the President), the members of the
cabinet, and the security council" and that the
barangays felt, notwithstanding the previous
referenda on the convening of the interim
National Assembly that "it is time to again ask
the people's opinion of this matter "24
8. If proposals for constitutional amendments
are now deemed necessary to be discussed
and adopted for submittal to the people, strict
adherence with the mandatory requirements of
the amending process as provided in the
Constitution must be complied with. This
means, under the teaching of Tolentino that the
proposed amendments must validly come from
the constitutional agency vested with the
constituent power to do so, namely, the interim
National Assembly, and not from the executive
power as vested in the Prime Minister (the
incumbent President) with the assistance of the
Cabinet 25 from whom such power has been
withheld.
It will not do to contend that these proposals
represent the voice of the people for as was
aptly stated by Cooley "Me voice of the people,
acting in their sovereign capacity, can be of
legal force only when expressed at the times
and under the conditions which they
themselves have prescribed and pointed out by
the Constitution. ... ."26
The same argument was put forward and
rejected by this Court in Tolentino which
rejected the contention that the "Convention
being a legislative body of the highest order
(and directly elected by the people to speak
their voice) is sovereign, in as such, its acts
impugned by petitioner are beyond the control
of Congress and the Courts" and ruled that the
constitutional article on the amending process"
is nothing more than a part of the Constitution
thus ordained by the people. Hence, in
continuing said section, We must read it as if
the people said, "The Constitution may be
amended, but it is our will that the amendment
must be proposed and submitted to Us for
ratification only in the manner herein
provided'".27
This Court therein stressed that "This must be
so, because it is plain to Us that the framers of
the Constitution took care that the process of
amending the same should not be undertaken
with the same ease and facility in changing an
ordinary legislation. Constitution making is the
most valued power, second to none, of the
people in a constitutional democracy such as
the one our founding fathers have chosen for
this nation, and which we of the succeeding
generations generally cherish. And because
the Constitution affects the lives, fortunes,
future and every other conceivable aspect of
the lives of all the people within the country and
those subject to its sovereignity, ever
constitution worthy of the people for which it is
intended must not be prepared in haste without
adequate deliberation and study. It is obvious
that correspondingly, any amendment of the
Constitution is of no less importance than the
whole Constitution itself, and perforce must be
conceived and prepared with as much care and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
deliberation;" and that "written constitutions are
supposed to be designed so as to last for some
time, if not for ages, or for, at least, as long as
they can be adopted to the needs and
exigencies of the people, hence, they must be
insulated against precipitate and hasty actions
motivated by more or less passing political
moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and
conditions, more or less stringent, made so by
the people themselves, in regard to the
process of their amendment."28
9. The convening of the interim National
Assembly to exercise the constituent power to
proposed amendments is the only way to fulfill
the express mandate of the Constitution.
As Mr. Justice Fernando emphasized for this
Court in Mutuc vs. Comelec 29 in the setting as
in of a Comelec resolution banning the use of
political taped jingles by candidates for
Constitutional Convention delegates int he
special 1970 elections, "the concept of the
Constitution as the fundamental law, setting
forth the criterion for the validity of any public
act whether proceeding from the highest official
or the lowest functionary, is a postulate of our
system of government. That is to amnifst fealty
to the rule of law, with priority accorded to that
which occupies the topmost rung in the legal
heirarchy. The three departments of
government in the discharge of the functions
with which it is entrusted have no choice but to
yield obedience to its commands. Whatever
limits it imposes must be observed. Congress
in the enactment of statutes must ever be on
guart lest the restrictions on its authority,
whether substantive or formal, be transcended.
The Presidency in the execution of the laws
cannot ignore of disregard what it ordains. In its
task of applying the law to the facts as found in
deciding cases, the judiciary is called upon the
maintain inviolate what is decreed by the
fundamental law."
This is but to give meaning to the plan and
clear mandate of section 15 of the Transitory
Provisions (which allows of no other
interpretation) that during the stage of transition
the interim National Assembly alone exercises
the constituent power to propose amendments,
upon special call therefor. This is reinforced by
the fact that the cited section does not grant to
the regular National Assembly of calling a
constitutional convention, thus expressing the
will of the Convention (and presumably of the
people upon ratification) that if ever the need to
propose amendments arose during the limited
period of transition, the interim National
Assembly alone would discharge the task and
no constitutional convention could be call for
the purpose.
As to the alleged costs involved in convening
the interim National Assembly to propose
amendments, among them its own abolition,
(P24 million annually in salaries alone for its
400 members at P600,000.00 per annum per
member, assuming that its deliberations could
last for one year), suffice it to recall this Court's
pronouncement in Tolentino (in reflecting a
similar argument on the costs of holding a
plebiscite separately from the general elections
for elective officials) that "it is a matter of public
knowledge that bigger amounts have been
spent or thrown to waste for many lesser
objectives. ... Surely, the amount of seventeen
million pesos or even more is not too much a
price to pay for fealty and loyalty to the
Constitution ... " 30 and that "while the financial
costs of a separate plebiscite may be high, it
can never be as much as the dangers involved
in disregarding clear mandate of the
Constitution, no matter how laudable the
objective" and "no consideration of financial
costs shall deter Us from adherence to the
requirements of the Constitution".11
10. The imposition of martial law (and "the
problems of rebellion, subversion, secession,
recession, inflation and economic crisis a crisis
greater than war") 32 cited by the majority
opinion as justifying the concentration of
powers in the President, and the recognition
now of his exercising the constituent power to
propose amendments to the Fundamental Law
"as agent for and in behalf of the people"33 has
no constitutional basis.
In the post-war Emergency Powers 33*, former
Chief Justice Ricardo Paras reaffirmed for the
Court the principle that emergency in itself
cannot and should not create power. In our
democracy the hope and survival of the nation
lie in the wisdom and unselfish patriotism of all
officials and in their faithful 'Adherence to the
Constitution".
The martial law clause of the 1973 Constitution
found in Article IX, section 12 , as stressed by
the writer in his separate opinion in the
Referendum Cases,14 "is a verbatim
reproduction of Article VII, section 10 (2) of the
1935 Constitution and provides for the
imposition of martial law only 'in case of
invasion, resurrection or rebellion, or imminent
danger thereof, when the public safety requires
it and hence the use of the legislative power or
more accurately 'military power' under martial
rule is limited to such necessary measures as
 HUMAN RIGHTS PRELIMFULLTEXT CASES
will safeguard the Republic and suppress the
rebellion (or invasion)". 35
11. Article XVII, section 3 (2) of the 1973
Constitution which has been held by the
majority in the Referendum Cases to be the
recognition or warrant for the exercise of
legislative power by the President during the
period of martial law is but a transitory
provision. Together with the martial law clause,
they constitute but two provisions which are not
to be considered in isolation from the
Constitution but as mere integral parts thereof
which must be harmonized consistently with
the entire Constitution.
As Cooley restated the rule: "effect is to be
given, if possible, to the whole instrument, and
to every section and clause. If different portions
seem to conflict, the courts must harmonize
them, if practicable, and must lean in favor of a
construction which will render every word
operative, rather than one which may make
some words Idle and nugatory.
This rule is applicable with
special force to written
constitutions, in which the people
will be presumed to have
expressed themselves in careful
and measured terms,
corresponding with the immense
importance of the powers
delegated, leaving as little as
possible to implication. It is
scarcelly conceivable that a case
can arise where a court would
bye justified in declaring any
portion of a written constitution
nugatory because of ambiguity.
One part may qualify another so
as to restrict its operation, or
apply it otherwise than the natural
construction would require if it
stood by itself; but one part is not
to be allowed to defeat another, if
by any reasonable construction
the two can be made to stand
together. 36
The transcendental constituent power to
propose and approve amendments to the
Constitution as well as set up the machinery
and prescribe the procedure for the ratification
of his proposals has been withheld from the
President (Prime Minister) as sole repository of
the Executive Power, presumably in view of the
immense powers already vested in him by the
Constitution but just as importantly, because by
the very nature of the constituent power, such
amendments proposals have to be prepared,
deliberated and matured by a deliberative
assembly of representatives such as the
interim National Assembly and hence may not
be antithetically entrusted to one man.
Former Chief Justice Roberto Concepcion had
observed before the elevation of the l971
Constitutional Convention that the records of
past plebiscites show that the constitutional
agency vested with the exercise of the
constituent power (Congress or the
Constitutional Convention) really determined
the amendments to the Constitution since the
proposals were invariably ratified by the
people 37 thus: "although the people have the
reserved power to ratify or reject the action
taken by the Convention, such power is not, in
view of the circumstances attending its
exercise, as effective as one might otherwise
think: that, despite the requisite ratification by
the people, the actual contents of our
fundamental law will really be determined by
the Convention; that, accordingly the people
should exercise the greatest possible degree of
circumspection in the election of delegates
thereto ... "38
12. Martial law concededly does not abrogate
the Constitution nor obliterate its constitutional
boundaries and allocation of powers among the
Executive, Legislative and Judicial
39
Departments. 
It has thus been aptly observed that "Martial
law is an emergency regime, authorized by and
subject to the Constitution. Its basic premise is
to preserve and to maintain the Republic
against the dangers that threaten it. Such
premise imposes constraints and limitations.
For the martial law regime fulfills the
constitutional purpose only if, by reason of
martial law measures, the Republic is
preserved. If by reason of such measures the
Republic is so transformed that it is changed in
its nature and becomes a State other than
republican, then martial law is a failure; worse,
martial law would have become the enemy of
the Republic rather than its defender and
preserver."40
II. On the question of the Court's jurisdiction to
pass upon the constitutionality of the
questioned presidential decrees: let it be
underscored that the Court has long set at rest
the question.
The trail was blazed for the Court since the
benchmark case of Angara vs. Electoral
Commission when Justice Jose P. Laurel
echoed U.S. Chief Justice Marshall's "climactic
phrase" that "we must never forget that it is a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Constitution we are expounding" and declared
the Court's "solemn and sacred" constitutional
obligation of judicial review and laid down the
doctrine that the Philippine Constitution as "a
definition of the powers of government" placed
upon the judiciary the great burden of
"determining the nature, scope and extent of
such powers" and stressed that "when the
judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority
over the other departments . . . but only asserts
the solemn and sacred obliteration entrusted to
it by the Constitution to determine conflicting
claims of authority under the Constitution and
to establish for the parties in an actual
controversy the rights which the instrument
secures and guarantees to them".
At the same time, the Court likewise adhered to
the constitutional tenet that political questions,
i.e. questions which are intended by the
Constitutional and relevant laws to be
conclusively determined by the "political", i.e.
branches of government (namely, the
Executive and the Legislative) are outside the
Court's jurisdiction. 41
Thus, in Gonzales,42 (by a unanimous Court)
and in Tolentino43 (by the required
constitutional majority), the Court has since
consistently ruled that when proposing and
approving amendments to the Constitution, the
members of Congress. acting as a constituent
assembly or the members of the Constitutional
Convention elected directly for the purpose by
not have the final say on whether or not their
acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the
same at naught, contrary to the basic tenet that
outs is it government of lawsom not of men,
and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that, the
Constitution expressly confers upon the
Supreme Court, the power to declare a treaty
unconstitutional, despite the eminently political
character of treaty-making power".44
As amplified by former Chief Justice
Concepcion in Javellana vs Executive
Secretary 45 (by a majority vote), "when the
grant of power is qualified, conditional or
subject to limitations. the issue on whether or
not the prescribed qualifications or conditions
have been met, or the limitations by expected,
is justiciable or non-political, the crux of the
problem being one of legality or validity of the
contested act, not its wisdom Otherwise, said
qualifications, conditions and limitations-
particularly those prescribed or imposed by the
Constitution would be set at naught".
The fact that the proposed amendments are to
be submitted to the people for ratification by no
means makes the question political and non-
justiciable since as stressed even in Javellana
the issue of validity of the President's
proclamation of ratification of the Constitution
presented a justiciable and non-political
question
Stated otherwise, the question of whether the
Legislative acting as a constituent assembly or
the Constitutional Convention called fol- the
purpose, in proposing amendments to the
people for ratification followed the constitutional
procedure and on the amending process is
perforce a justiciable question and does not
raise a political question of police or wisdom of
the proposed amendments, which if Submitted,
are reserved for the people's decision.
The substantive question presented in the case
at bar of whether the President may legally
exercise the constituent power vested in the
interim National Assembly (which has not been
granted to his office) and propose constitutional
amendments is preeminently a justiciable
issue.
Justice Laurel in Angara had duly enjoined that
"in times of social disquietude or political
excitement, the great landmarks of the
Constitution are apt to be forgotten or marred,
if not entirely obliterated. In cases of conflict,
the judicial department is the only constitutional
organ which can be called upon to determine
the proper allocation of powers between the
several departments and among the integral or
constituent units thereof".
To follow the easy way out by disclaiming
jurisdiction over the issue as a political
question would be judicial abdication.
III. On the question of whether there is a
sufficient and proper submittal of the proposed
amendments to the people: Prescinding from
the writer's view of the nullity of the questioned
decree of lack of authority on the President's
part to excercise the constituent power, I hold
that the doctrine of fair and proper submission
first enunciated by a simple majority of by
Justices in Gonzales and subsequently
officially adopted by the required constitutional
two-thirds majority of the Court in is controlling
in the case at bar.
1. There cannot be said to be fair and proper
submission of the proposed amendments. As
ruled by this Court in Tolentino where "the
proposed amendment in question is expressly
saddled with reservations which naturally
 HUMAN RIGHTS PRELIMFULLTEXT CASES
impair, in great measures, its very essence as
a proposed constitutional amendment" and
where "the way the proposal is worded, read
together with the reservations tacked to it by
the Convention thru Section 3 of the
questioned resolution, it is too much of a
speculation to assume what exactly the
amendment would really amount lo in the end.
All in all, as already pointed out in our
discussion of movants' first ground, if this kind
of amendment is allowed, the Philippines will
appear before the world to be in the absurd
position of being the only country with a
constitution containing a provision so
ephemeral no one knows until when it will bet
actually in force", there can be no proper
submission.
In Tolentino a solitary amendment reducing the
voting age to 18 years was struck down by this
Court which ruled that "in order that a plebiscite
for the ratification of an amendment to the
Constitution may be validly held, it must
provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the
nature of the amendment per se as well as its
relation to the other parts of the Constitution
with which it has to form a harmonious whole,"
and that there was no proper Submission
wherein the people are in the dark as to frame
of reference they can base their judgment on
2. The now Chief Justice and Mr. Justice
Makasiar with two other members 46
graphically pointed out in their joint separate
opinion that the solitary question "would seem
to be uncomplicated and innocuous. But it is
one of life's verities that things which appear to
be simple may turn out not to be so simple
after all".47
They further expressed "essential agreement"
with Mr. Justice Conrado V. Sanchez' separate
opinion in Gonzales "on the minimum
requirements that must be met in order that
there can be a proper submission to the people
of a proposed constitutional amendment" which
reads thus:
... we take the view that the
words 'submitted to the people for
their ratification', if construed in
the light of the nature of the
Constitution a fundamental
charter that is legislation direct
from the people, an expression of
their sovereign will - is that it can
only be amended by the people
expressing themselves according
to the procedure ordained by the
Constitution. Therefore,
amendments must be fairly laid
before the people for their
blessing or spurning. The people
are not to be mere rubber
stamps. They are not to vote
blindly. They must be afforded
ample opportunity to mull over
the original provisions, compare
them with the proposed
amendments, and try to reach a
conclusion as the dictates of their
conscience suggest, free from the
incubus of extraneous or possibly
insidious influences. We believe
the word submitted' can only
mean that the government, within
its maximum capabilities, should
strain every effort to inform every
citizen of the provisions to be
amended, and the proposed
amendments and the meaning,
nature and effects thereof. By
this, we are not to be understood
as saying that, if one citizen or
100 citizens or 1,000 citizens
cannot be reached, then there is
no submission within the meaning
of the word as intended by the
framers of the Constitution. What
the Constitution in effect directs is
that the government, in
submitting an amendment for
ratification, should put every
instrumentality or agency within
its structural framework to
enlighten the people, educate
them with respect to their act of
ratification or rejection. For, as we
have earlier stated, one thing is
submission and another is
ratification. There must be fair
submission, intelligent. consent or
rejection. If with all these
safeguards the people still
approve the amendment no
matter how prejudicial it is to
them, then so be it. For the
people decree their own fate.48
Justice Sanchez therein ended the passage
with an apt citation that " ... " The great men
who builded the structure of our state in this
respect had the mental vision of a good
Constitution voiced by Judge Cooley, who has
said 'A good Constitution should be beyond the
reach of temporary excitement and. popular
caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the
people; not to the whim of the people, or the
thought evolved in excitement or hot blood, but
the sober second thought, which alone, if the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
government is to be safe, can be allowed
efficiency. xxx xxx xxx Changes in government
are to be feared unless the benefit is certain.
As Montaign says: All great mutations shake
and disorder state. Good does not necessarily
succeed evil ;another evil may succeed and a
worse'." 49
Justice Sanchez thus stated the rule that has
been adopted by the Court in Tolentino that
there is no proper submission "if the people are
not sufficiently affirmed of the amendments to
be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine
manner. ... .." 50
3. From the complex and complicated
proposed amendments set forth in the
challenged decree and the plethora of
confused and confusing clarifications reported
in the daily newspapers, it is manifest that
there is no proper submission of the proposed
amendments. Nine (9) proposed constitutional
amendments were officially proposed and
made known as per Presidential Decree No.
1033 dated, September 22, 1976 for submittal
at the "referendum-plebiscite" called for this
coming Saturday, October 16, 1976 wherein
the 15-year and under 18-year- olds are
enjoined to vote notwithstanding their lack of
qualification under Article VI of the Constitution.
Former Senator Arturo Tolentino, an
acknowledged parliamentarian of the highest
order, was reported by the newspapers last
October 3 to have observed that "there is no
urgency in approving the proposed
amendments to the Constitution and suggested
that the question regarding charter changes be
modified instead of asking the people to vote
on hurriedly prepared amendments". He further
pointed out that "apart from lacking the
parliamentary style in the body of the
Constitution, they do not indicate what
particular provisions are being repealed or
amended".52
As of this writing, October 11, 1976, the paper
today reported his seven-page analysis
questioning among others the proposed
granting of dual legislative powers to both the
President and the Batasang Pambansa and
remarking that "This dual legislative authority
can give rise to confusion and serious
constitutional questions".53
Aside from the inadequacy of the limited time
given for the people's consideration of the
proposed amendments, there can be no proper
submission because the proposed
amendments are not in proper form and violate
the cardinal rule of amendments of written
constitutions that the specific provisions of the
Constitution being repealed or amended as
well as how the specific provisions as amended
would read, should be clearly stated in careful
and measured terms. There can be no proper
submission because the vagueness and
ambiguity of the proposals do not sufficiently
inform the people of the amendments for,
conscientious deliberation and intelligent
consent or rejection.
4. While the press and the Solicitor General at
the hearing have stated that the principal thrust
of the proposals is to substitute the interim
National Assembly with an interim Batasang
Pambansa, a serious study thereof in detail
would lead to the conclusion that the whole
context of the 1973 Constitution proper would
be affected and grave amendments and
modifications thereof -would apparently be
made, among others, as follows:
Under Amendment No. 1, the qualification age
of members of the interim Batasang Pambansa
is reduced to 18 years;
Under Amendment No. 2, the treaty-concurring
power of the Legislature is withheld from the
interim Batasang Pambansa;
Under Amendment No 3, not withstanding the
convening of the interim Batasang Pambansa
within 30 days from the election and selection
of the members (for which there is no fixed
date) the incumbent President apparently
becomes a regular President and Prime
Minister (not ad interim);
Under Amendment No. 4, the disqualifications
imposed on members of the Cabinet in the
Constitution such as the prohibition against the
holding of more than one office in the
government including government-owned or
-controlled corporations would appear to be
eliminated, if not prescribed by the President;
Under Amendment No. 5, the President shall
continue to exercise legislative powers until
martial law is lifted;
Under Amendment No. 6, there is a duality of
legislative authority given the President and the
interim Batasang Pambansa as well as the
regular National Assembly, as pointed out by
Senator Tolentino, with the President
continuing to exercise legislative powers in
case of "grave emergency or a threat or
imminence thereof" (without definition of terms)
or when said Assemblies "fail or are unable to
act adequately on any matter for any reason
that in his judgment requires immediate
 HUMAN RIGHTS PRELIMFULLTEXT CASES
action", thus radically affecting provisions of On the first issue, it is almost sure
the Constitution governing the said that the interim National
departments; Assembly will not be convened,
primarily because of its
Under Amendment No. 7, the barangays and membership. Majority of the
Sanggunians would apparently be members of the defunct
constitutionalized, although their functions, Congress, who are mandated by
power and composition may be altered by law. the Constitution to become
Referendums (which are not authorized in the members of the interim National
present 1973 Constitution) would also be Assembly, have gained so
constitutionalized, giving rise to the possibility widespread a notoriety that the
fraught with grave consequences, as mere mention of Congress
acknowledged at the hearing, that conjures the image of a den of
amendments to the Constitution may thereafter thieves who are out to fool the
be effected by referendum, rather than by the people most of the time. Among
rigid and strict amending process provided the three branches of
presently in Article XVI of the Constitution; government, it was the most
discredited. In fact, upon the
Under Amendment No. 8, there is a general declaration of martial law, some
statement in general that the unspecified people were heard to mutter that
provisions of the Constitution "not inconsistent a 'regime that has finally put an
with any of these amendments" shall continue end to such congressional
in full force and effect; and Under Amendment shenanigans could not be all that
No. 9. the incumbent President is authorized to bad'.
proclaim the ratification of the amendments by
the majority of votes cast. It has likewise been A substitute legislative body is
stressed by the officials concerned that the contemplated to help the
proposed amendments come in a package and President in promulgating laws,
may not be voted upon separately but on an and perhaps minimize the
"all or nothing" basis. issuance of ill-drafted decrees
which necessitate constant
5. Whether the people can normally express amendments. But care should be
their will in a genuine manner and with due taken that this new legislative
circumspection on the proposed amendments body would not become a mere
amidst the constraints of martial law is yet rubber stamp akin to those of
another question. That a period of free debate other totalitarian countries. It
and discussion has to be declared of itself should be given real powers,
shows the limitations on free debate and otherwise we will just have
discussion. The facilities for free debate and another nebulous creation having
discussion over the mass media, print and the form but lacking the
otherwise are wanting. The President himself is substance. Already the President
reported to have observed the timidity of the has expressed the desire that
media under martial law and to have directed among the powers he would like
the press to air the views of the opposition.54 to have with regard to the
proposed legislative body is that
Indeed, the voice of the studentry as reflected of abolishing it in case 'there is a
in the editorial of the Philippine Collegian issue need to do so'. As to what would
of September 23, 1976 comes as a welcome occasion such a need, only the
and refreshing model of conscientious President himself can determine.
deliberation, as our youth analyzes the issues This would afford the Chief
"which will affect generations yet to come" and Executive almost total power over
urge the people to mull over the pros and cons the legislature, for he could
very carefully", as follows: always offer the members thereof
a carrot and a stick.
THE REFERENDUM ISSUES
On the matter of lifting martial law
On October 16, the people may the people have expressed
be asked to decide on two ambivalent attitudes. Some of
important national issues - the them, remembering the turmoil
creation of a new legislative body that prevailed before the
and the lifting of martial law. declaration of martial law, have
 HUMAN RIGHTS PRELIMFULLTEXT CASES
expressed the fear that its lifting
might precipitate the revival of the
abuses of the past, and provide
an occasion for evil elements to
resurface with their usual tricks.
Others say that it is about time
martial law was lifted since the
peace and order situation has
already stabilized and the
economy seems to have been
parked up.
The regime of martial law has
been with us for four years now.
No doubt, martial law has initially
secured some reforms for the
country The people were quite
willing to participate in the new
experiment, thrilled by the novelty
of it all. After the euphoria,
however, the people seem to
have gone back to the old ways,
with the exception that some of
our freedoms were taken away,
and an authoritarian regime
established.
We must bear in mind that martial
law was envisioned only to cope
with an existing national crisis, It
was not meant to be availed of for
a long period of time, otherwise it
would undermine our adherence
to a democratic form of
government. In the words of the
Constitution. martial law shall
only be declared in times of
'rebellion, insurrection,. invasion,
or imminent danger thereof, when
the public safety requires it'.
Since we no longer suffer from
internal disturbances of a day to day, from achievement to
gargantuan scale, it is about time
we seriously rethink the
'necessity' of prolonging the
martial law regime. If we justify
the continuance of martial by
economic or other reasons other
than the foregoing constitutional
grounds, then our faith in the
Constitution might be questioned.
Even without martial law,. the
incumbent Chief Executive still
holds vast powers under the
constitution. After all, the gains of
the New Society can be secured
without sacrificing the freedom of
our people. If the converse is
true, then we might have to
conclude that the Filipinos
deserve a dictatorial form of
government. The referendum
results will show whether the
people themselves have adopted
this sad conclusion.
The response of the people to the
foregoing issues will affect
generations yet to come, so they
should mull over the pros and
cons very carefully."
6. This opinion by written in the same spirit as
the President's exhortations on the first
anniversary of proclamation of the 1973
Constitution that we "let the Constitution
remain firm and stable" so that it may "guide
the people", and that we "remain steadfast on
the rule of law and the Constitution" as he
recalled his rejection of the "exercise (of)
power that can be Identified merely with a
revolutionary government" that makes its own
law, thus:
. . . Whoever he may be and
whatever position he may happen
to have, whether in government
or outside government, it is
absolutely necessary now that we
look solemnly and perceptively
into the Constitution and try to
discover for ourselves what our
role is in the successful
implementation of that
Constitution. With this thought,
therefore, we can agree on one
thing and that is: Let all of us age,
let all of us then pass away as a
pace in the development of our
country. but let the Constitution
remain firm and stable and let
institutions grow in strength from
achievement, and so long as that
Constitution stands, whoever may
the man in power be, whatever
may his purpose be, that
Constitution will guide the people
and no man, however, powerful
he may be, will dare to destroy
and wreck the foundation of such
a Constitution.
These are the reasons why I
personally, having proclaimed
martial law, having been often
induced to exercise power that
can be Identified merely with a
revolutionary government, have
remained steadfast or the rule of
law and the Constitution. 54*
 HUMAN RIGHTS PRELIMFULLTEXT CASES
IV. A final word on the Court's resolution of
October 5, 1976 which in reply to the Comelec
query allowed by a vote of 7 to 3, judges of all
courts, after office hours, "to accept invitations
to act as resource speakers under Section 5 of
Presidential Decree No. 991, as amended, as
well as to take sides in discussions and
debates on the referendum-plebiscite
questions under Section 7 of the same
Decree."55
The writer with Mr. Justice Makasiar and
Madame Justice Munoz Palma had dissented
from the majority resolution, with all due
respect, on the ground that the non-
participation of judges in such public
discussions and debates on the referendum-
plebiscite questions would preserve the
traditional non-involvement of the judiciary in
public discussions of controversial issues. This
is essential for the maintenance and
enhancement of the people's faith and
confidence in the judiciary. The questions of
the validity of the scheduled referendum-
plebiscite and of whether there is proper
submission of the proposed amendments were
precisely subjudice by virtue of the cases at
bar.
The lifting of the traditional inhibition of judges
from public discussion and debate might
blemish the image and independence of the
judiciary. Aside from the fact that the fixing of a
time limit for the acceptance of their courtesy
resignations to avoid an indefinite state of
insecurity of their tenure in office still spends
litigants and their relatives and friends as well
as a good sector of the public would be
hesitant to air views contrary to that of the.
Judge. Justices Makasiar and Munoz Palma
who share these views have agreed that we
make them of record here, since we
understand that the permission given in the
resolution is nevertheless addressed to the
personal decision and conscience of each
judge, and these views may he of some
guidance to them.
BARREDO, J.,: concurring:
While I am in full agreement with the majority of
my brethren that the herein petitions should be
dismissed, as in fact I vote for their dismissal, I
deem it imperative that I should state
separately the considerations that have
impelled me to do so.
Perhaps, it is best that I should start by trying
to disabuse the minds of those who have
doubts as to whether or not I should have
taken part in the consideration and resolution
of these cases. Indeed, it would not be befitting
my position in this Highest Tribunal of the land
for me to leave unmentioned the circumstances
which have given cause, I presume, for others
to feel apprehensive that my participation in
these proceedings might detract from that
degree of faith in the impartiality that the
Court's judgment herein should ordinarily
command. In a way, it can be said, of course,
that I am the one most responsible for such a
rather problematical situation, and it is
precisely for this reason that I have decided to
begin this opinion with a discussion of why I
have not inhibited myself, trusting most
confidently that what I have to say will be taken
in the same spirit of good faith, sincerity and
purity of purpose in which I am resolved to offer
the same.
Plain honesty dictates that I should make of
record here the pertinent contents of the official
report of the Executive Committee of the
Katipunan ng mga Sanggunian submitted to
the Katipunan itself about the proceedings held
on August 14, 1976. It is stated in that public
document that:
THE ISSUE WITH REGARDS To
THE CONVENING OF A
LEGISLATIVE body came out
when the President express his
desire to share his powers with
other people.
Aware of this, a five-man Committee members
of the Philippine Constitution Association
(PHILCONSA) headed by Supreme Court
Justice Antonio Barredo proposed on July 28,
the establishment of 'Sangguniang Pambansa'
or 'Batasang Pambansa' which would help the
President in the performance of his legislative
functions. The proposed new body will take the
place of the interim National Assembly which is
considered not practical to convene at this time
considering the constitution of its membership.
Upon learning the proposal of Justice Barredo,
the country's 42,000 barangay assemblies on
August 1 suggested that the people be
consulted on a proposal to create a new
legislative body to replace the interim assembly
provided for by the Constitution. The
suggestion of the barangay units was made
through their national association,
Pambansang Katipunan ng mga Barangay
headed by Mrs. Nora Z. Patines. She said that
the people have shown in at least six instances
including in the two past referenda that they
are against the convening of the interim
National Assembly. She also said that since
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the people had ruled out the calling of such
assembly and that they have once proposed
that the President create instead the
Sangguniang Pambansa or a legislative
advisory body, then the proposal to create a
new legislative must necessarily be referred to
the people.
The federation of Kabataang Barangay, also
numbering 42,000 units like their elder
counterparts in the Katipunan ng mga
Barangay also asserted their own right to be
heard on whatever plans are afoot to convene
a new legislative body.
On August 6, a meeting of the national
directorate of PKB was held to discuss matters
pertaining to the stand of the PKB with regards
to the convening of a new legislative body. The
stand of the PKB is to create a legislative
advisory council in place of the old assembly.
Two days after, August 8, the Kabataang
Barangay held a symposium and made a stand
which is the creation of a body with full
legislative powers.
A nationwide clamor for the holding of meeting
in their respective localities to discuss more
intellegently the proposal to create a new
legislative body was made by various urban
and rural Sangguniang Bayans.
Numerous requests made by some members
coming from 75 provincial and 61 city SB
assemblies, were forwarded to the Department
of Local Government and Community
Development (DLGCD).
On August 7, Local Government Secretary,
Jose A. Rono granted the request by
convening the 91 member National Executive
Committee of the Pambansang Katipunan ng
mga Sanggunian on August 14 which was held
at Session Hall, Quezon City. Invited also to
participate were 13 Regional Federation
Presidents each coming from the PKB and the
PKKB
Actually, the extent of my active participation in
the events and deliberations that have
culminated in the holding of the proposed
referendum- plebiscite on October 16, 1976,
which petitioners are here seeking to enjoin,
has been more substantial and meaningful
than the above report imparts. Most
importantly, aside from being probably the first
person to publicly articulate the need for the
creation of an interim legislative body to take
the place of. the interim National Assembly
provided for in the Transitory Provisions of the
Constitution, as suggested in the above report,
I might say that I was the one most vehement
and persistent in publicly advocating and
urging the authorities concerned to directly
submit to the people in a plebiscite whatever
amendments of the Constitution might be
considered necessary for the establishment of
such substitute interim legislature. In the
aforementioned session of the Executive
Committee of the Katipunan, I discourse on the
indispensability of a new interim legislative
body as the initial step towards the early lifting
of martial law and on the fundamental
considerations why in our present situation a
constitutional convention would be superfluous
in amending the Constitution.
Moreover, it is a matter of public knowledge
that in a speech I delivered at the Coral
Ballroom of the Hilton Hotel in the evening of
August 17, 1976, I denounced in no uncertain
terms the plan to call a constitutional
convention. I reiterated the same views on
September 7, 1976 at the initial conference
called by the Comelec in the course of the
information and educational campaign it was
enjoined to conduct on the subject. And looking
back at the subsequent developments up to
September 22, 1976, when the Batasang
Bayan approved and the President signed the
now impugned Presidential Decree No. 1033, it
is but human for me to want to believe that to a
certain extent my strong criticisms and resolute
stand against any other alternative procedure
of amending the Constitution for the purpose
intended had borne fruit.
I must hasten to add at this point, however, that
in a larger sense, the initiative for all I have
done, was not altogether mine alone. The truth
of the matter is that throughout the four years
of this martial law government, it has always
been my faith, as a result of casual and
occasional exchanges of thought with
President Marcos, that when the appropriate
time does come, the President would somehow
make it known that in his judgment, the
situation has already so improved as to permit
the implementation, if gradual, of the
constitutionally envisioned evolution of our
government from its present state to a
parliamentary one. Naturally, this would
inevitably involve the establishment of a
legislative body to replace the abortive interim
National Assembly. I have kept tract of all the
public and private pronouncements of the
President, and it was the result of my reading
thereof that furnished the immediate basis for
my virtually precipitating, in one way or
another, the materialization of the forthcoming
referendum-plebiscite. In other words, in the
final analysis, it was the President's own
 HUMAN RIGHTS PRELIMFULLTEXT CASES
attitude on the matter that made it opportune
for me to articulate my own feelings and Ideas
as to how the nation can move meaningfully
towards normalization and to publicly raise the
issues that have been ventilated by the parties
in the instant cases.
I would not be human, if I did not consider
myself privileged in having been afforded by
Divine Providence the opportunity to contribute
a modest share in the formulation of the steps
that should lead ultimately to the lifting of
martial law in our country. Indeed, I am certain
every true Filipino is anxiously looking forward
to that eventuality. And if for having voiced the
sentiments of our people, where others would
have preferred to be comfortably silent, and if
for having made public what every Filipino
must have been feeling in his heart all these
years, I should be singled out as entertaining
such preconceived opinions regarding the
issues before the Court in the cases at bar as
to preclude me from taking part in their
disposition, I can only say that I do not believe
there is any other Filipino in and out of the
Court today who is not equally situated as I
am .
The matters that concern the Court in the
instant petitions do not involve merely the
individual interests of any single person or
group of persons. Besides, the stakes in these
cases affect everyone commonly, not
individually. The current of history that has
passed through the whole country in the wake
of martial law has swept all of us, sparing none,
and the problem of national survival and of
restoring democratic institutions and Ideals is
seeking solution in the minds of all of us. That I
have preferred to discuss publicly my own
thoughts on the matter cannot mean that my
colleagues in the Court have been indifferent
and apathetic about it, for they too are
Filipinos. Articulated or not, all of us must have
our own preconceived Ideas and notions in
respect to the situation that confronts the
country. To be sure, our votes and opinions in
the- major political cases in the recent past
should more or less indicate our respective
basic positions relevant to the issues now
before Us. Certainly, contending counsels
cannot be entirely in the dark in this regard. I
feel that it must have been precisely because
of such awareness that despite my known
public participation in the discussion of the
questions herein involved, none of the parties
have sought my inhibition or disqualification.
Actually, although it may be difficult for others
to believe it, I have never allowed my
preconceptions and personal inclinations to
affect the objectivity needed in the resolution of
any judicial question before the Court. I feel I
have always been able to appreciate, fully
consider and duly weigh arguments and points
raised by all counsels, even when they conflict
with my previous views. I am never beyond
being convinced by good and substantial
ratiocination. Nothing has delighted me more
than to discover that somebody else has
thought of more weighty arguments refuting my
own, regardless of what or whose interests are
at stake. I would not have accepted my position
in the Court had I felt I would not be able to be
above my personal prejudices. To my mind, it
is not that a judge has preconceptions that
counts, it is his capacity and readiness to
absorb contrary views that are indispensable
for justice to prevail. That suspicions of
prejudgment may likely arise is unavoidable;
but I have always maintained that whatever
improper factors might influence a judge will
unavoidably always appear on the face of the
decision. In any event, is there better
guarantee of justice when the preconceptions
of a judge are concealed?
Withal, in point of law, I belong to the school of
thought that regards members of the Supreme
Court as not covered by the general rules
relative to disqualification and inhibition of
judges in cases before them. If I have in
practice actually refrained from participating in
some cases, it has not been because of any
legal ground founded on said rules, but for
purely personal reasons, specially because,
anyway, my vote would not have altered the
results therein.
It is my considered opinion that unlike in the
cases of judges in the lower courts, the
Constitution does not envisage compulsory
disqualification or inhibition in any case by any
member of the Supreme Court. The Charter
establishes a Supreme Court "composed of a
Chief Justice and fourteen Associate Justices",
with the particular qualifications therein set
forth and to be appointed in the manner therein
provided. Nowhere in the Constitution is there
any indication that the legislature may
designate by law instances wherein any of the
justices should not or may not take part in the
resolution of any case, much less who should
take his place. Members of the Supreme Court
are definite constitutional officers; it is not
within the power of the lawmaking body to
replace them even temporarily for any reason.
To put it the other way, nobody who has not
been duly appointed as a member of the
Supreme Court can sit in it at any time or for
any reason. The Judicial power is vested in the
Supreme Court composed as the Constitution
 HUMAN RIGHTS PRELIMFULLTEXT CASES
ordains - that power cannot be exercised by a by absolute verities to guide Us
Supreme Court constituted otherwise. And so, all the way. The first and most
when as in the instant where, if any of the important of them is that the
member of Court is to abstain from taking part, Constitution (Unless expressly
there would be no quorum - and no court to stated otherwise, all references to
render the decision - it is the includible duty of the Constitution in this discussion
all the incumbent justices to participate in the are to both the 1935 and 1973
proceedings and to cast their votes, charters, since, after all, the
considering that for the reasons stated above, pertinent provisions are
the provisions of Section 9 of the Judiciary Act practically Identical in both is the
do not appear to conform with the concept of supreme law of the land. This
the office of Justice of the Supreme Court means among other things that
contemplated in the Constitution. all the powers of the government
and of all its officials from the
The very nature of the office of Justice of the President down to the lowest
Supreme Court as the tribunal of last resort emanate from it. None of them
and bulwark of the rights and liberties of all the may exercise any power unless it
people demands that only one of dependable can be traced thereto either
and trustworthy probity should occupy the textually or by natural and logical
same. Absolute integrity, mental and otherwise, implication. "The second is that it
must be by everyone who is appointed thereto. is settled that the Judiciary
The moral character of every member of the provisions of the Constitution
Court must be assumed to be such that in no point to the Supreme Court as the
case whatsoever. regardless of the issues and ultimate arbiter of all conflicts as
the parties involved, may it be feared that to what the Constitution or any
anyone's life, liberty or property, much less the part thereof means. While the
national interests, would ever be in jeopardy of other Departments may adopt
being unjustly and improperly subjected to any their own construction thereof,
kind of judicial sanction. In sum, every Justice when such construction is
of the Supreme Court is expected to be challenged by the proper party in
capable of rising above himself in every case an appropriate case wherein a
and of having full control of his emotions and decision would be impossible
prejudices, such that with the legal training and without determining the correct
experience he must of necessity be adequately construction, the Supreme
equipped with, it would be indubitable that his Court's word on the matter
judgment cannot be but objectively impartial, controls.
Indeed, even the appointing power, to whom
the Justices owe their positions, should never xxx xxx xxx
hope to be unduly favored by any action of the
Supreme Court. All appointments to the Court xxx xxx xxx
are based on these considerations, hence the
ordinary rules on inhibition and disqualification The fifth is that in the same
do not have to be applied to its members. manner that the Executive power
conferred upon the Executive by
With the preliminary matter of my individual the Constitution is complete, total
circumstances out of the way, I shall now and unlimited, so also, the judicial
address myself to the grave issues submitted power vested in the Supreme
for Our resolution. Court and the inferior courts, is
the very whole of that power,
-I- without any limitation or
qualification.
In regard to the first issue as to whether the
questions posed in the petitions herein are xxx xxx xxx
political or justiciable, suffice it for me to
reiterate the fundamental position I took in the xxx xxx xxx
Martial Law cases,1 thus
From these incontrovertible
As We enter the extremely postulates, it results, first of all,
delicate task of resolving the that the main question before Us
grave issues thus thrust upon Us. is not in reality one of jurisdiction,
We are immediately encountered for there can be no conceivable
 HUMAN RIGHTS PRELIMFULLTEXT CASES
controversy, especially one
involving a conflict as to the
correct construction of the
Constitution, that is not
contemplated to be within the
judicial authority of the courts to
hear and decide. The judicial
power of the courts being
unlimited and unqualified, it
extends over all situations that
call for the as certainment and
protection of the rights of any
party allegedly violated, even
when the alleged violator is the
highest official of the land or the
government itself. It is, therefore,
evidence that the Court's
jurisdiction to take cognizance of
and to decide the instant petitions
on their merits is beyond
challenge.
In this connection, however, it
must be borne in mind that in the
form of government envisaged by
the framers of the Constitution
and adopted by our people, the
Court's indisputable and plenary
authority to decide does not
necessarily impose upon it the
duty to interpose its fiat as the
only means of settling the
conflicting claims of the parties
before it. It is ingrained in the
distribution of powers in the
fundamental law that hand in
hand with the vesting of the
judicial power upon the Court, the
Constitution has coevally
conferred upon it the discretion to
determine, in consideration of the
constitutional prerogatives
granted to the other Departments,
when to refrain from imposing
judicial solutions and instead
defer to the judgment of the latter.
It is in the very nature of
republican governments that
certain matters are left in the
residual power of the people
themselves to resolve, either
directly at the polls or thru their
elected representatives in the
political Departments of the
government. And these reserved
matters are easily distinguishable
by their very nature, when one
studiously considers the basic
functions and responsibilities
entrusted by the charter to each
of the great Departments of the
government. To cite an obvious
example, the protection, defense
and preservation of the state
against internal or external
aggression threatening its very
existence is far from being within
the ambit of judicial responsibility.
The distinct role then of the
Supreme Court of being the final
arbiter in the determination of
constitutional controversies does
not have to be asserted in such
contemplated situations, thereby
to give way to the ultimate
prerogative of the people
articulated thru suffrage or thru
the acts of their political
representatives they have elected
for the purpose.
Indeed, these fundamental considerations are
the ones that lie at the base of what is known in
American constitutional law as the political
question doctrine, which in that jurisdiction is
unquestionably deemed to be part and parcel
of the rule of law, exactly like its apparently
more attractive or popular opposite, judicial
activism, which is the fullest exertion of judicial
power, upon the theory that unless the courts
intervene injustice might prevail. It has been
invoked and applied by this Court in varied
forms and mode of projection in several
momentous instances in the past, (Barcelona
vs. Baker, 5 Phil. 87; Severino vs. Governor-
General, 16 Phil. 366; Abueva vs. Wood, 45
Phil. 612; Alejandrino vs. Quezon, 46 Phil. 85;
Vera vs. Avelino, 77 Phil. 192; Mabanag vs.
Lopez Vito, 78 Phil. 1; Cabin vs. Francisco, 88
Phil. 654; Montenegro vs. Castaneda, 91 Phil.
882, Santos vs. Yatco, 55 O.G. 8641 [Minute
Resolution of Nov. 6, 19591 Osmena vs.
Pendatun, Oct. 28, 1960.) and it is the main
support of the stand of the Solicitor General on
the issue of jurisdiction in the cases at bar. It is
also referred to as the doctrine of judicial self-
restraint or abstention. But as the
nomenclatures themselves imply, activism and
self- restraint are both subjective attitudes, not
inherent imperatives. The choice of alternatives
in any particular eventuality is naturally dictated
by what in the Court's considered opinion is
what the Constitution envisions should be by in
order to accomplish the objectives of
government and of nationhood. And perhaps it
may be added here to avoid confusion of
concepts, that We are not losing sight of the
traditional approach based on the doctrine of
separation of powers. In truth, We perceive that
even under such mode of rationalization, the
existence of power is secondary, respect for
the acts of a co-ordinate, co-equal and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
independent Department being the general
rule, particularly when the issue is not
encroachment of delimited areas of functions
but alleged abuse of a Department's own basic
prerogatives. (59 SCRA, pp. 379-383.)
Applying the foregoing considerations to the
cases at bar, I hold that the Court has
jurisdiction to pass on the merits of the various
claims of petitioners. At the same time,
however, I maintain that the basic nature of the
issues herein raised requires that the Court
should exercise its constitutionally endowed
prerogative to refrain from exerting its judicial
authority in the premises.
Stripped of incidental aspects, the
constitutional problem that confronts Us stems
from the absence of any clear and definite
express provision in the Charter applicable to
the factual milieu herein involved. The primary
issue is, to whom, under the circumstances,
does the authority to propose amendments to
the Constitution property belong? To say, in the
light of Section 15 of Article XVII of the Charter,
that that faculty lies in the interim National
Assembly is to beg the main question. Indeed,
there could be no occasion for doubt or debate,
if it could ' only be assumed that the interim
National Assembly envisaged in Sections 1
and 2 of the same Article XVII may be
convoked. But precisely, the fundamental issue
We are called upon to decide is whether or not
it is still constitutionally possible to convene
that body. And relative to that question, the
inquiry centers on whether or not the political
developments since the ratification of the
Constitution indicate that the people have in
effect enjoined the convening of the interim
National Assembly altogether. On this score, it
is my assessment that the results of the
referenda of January 10-15, 1973, July 27-28,
1973 and February 27, 1975 clearly show that
the great majority of our people, for reasons
plainly obvious to anyone who would consider
the composition of that Assembly, what with its
more than 400 members automatically voted
into it by the Constitutional Convention together
with its own members, are against its being
convoked at all.
Whether or not such a manifest determination
of the sentiments of the people should be given
effect without a formal amendment of the
Constitution is something that constitutional
scholars may endlessly debate on. What
cannot be disputed, however, is that the
government and the nation have acquiesced
to, it and have actually operated on the basis
thereof. Proclamation 1103 which, on the
predicate that the overwhelming majority of the
people desire that the interim Assembly be not
convened, has ordained the suspension of its
convocation, has not been assailed either
judicially or otherwise since the date of its
promulgation on January 17, 1973.
In these premises, it is consequently the task of
the Court to determine what, under these
circumstances, is the constitutional relevance
of the interim National Assembly to any
proposal to amend the Constitution at this time.
It is my considered opinion that in resolving
that question, the Court must have to grapple
with the problem of what to do with the will of
the people, which although manifested in a
manner not explicitly provided for in the
Constitution, was nevertheless official, and
reliable, and what is more important clear and
unmistakable, despite the known existence of
well-meaning, if insufficiently substantial
dissent. Such being the situation, I hold that it
is not proper for the Court to interpose its
judicial authority against the evident decision of
the people and should leave it to the political
department of the government to devise the
ways and means of resolving the resulting
problem of how to amend the Constitution, so
long as in choosing the same, the ultimate
constituent power is left to be exercised by the
people themselves in a well- ordered plebiscite
as required by the fundamental law.
-2-
Assuming We have to inquire into the merits of
the issue relative to the constitutional authority
behind the projected amendment of the Charter
in the manner provided in Presidential Decree
1033, I hold that in the peculiar situation in
which the government is today, it is not
incompatible with the Constitution for the
President to propose the subject amendments
for ratification by the people in a formal
plebiscite under the supervision of the
Commission on Elections. On the contrary, in
the absence of any express prohibition in the
letter of the Charter, the Presidential Decree in
question is entirely consistent with the spirit
and the principles underlying the Constitution.
The correctness of this conclusion should
become even more patent, when one
considers the political developments that the
people have brought about since the ratification
of the Constitution on January 17,1973.
I consider it apropos at this juncture to repeat
my own words in a speech I delivered on the
occasion of the celebration of Law Day on
September 18, 1975 before the members of
the Philippine Constitution Association and
their guests:
 HUMAN RIGHTS PRELIMFULLTEXT CASES
To fully comprehend the
constitutional situation in the
Philippines today, one has to
bear in mind that, as I have
mentioned earlier, the martial law
proclaimed under the 1935
Constitution overtook the drafting
of the new charter by the
Constitutional Convention of
1971. It was inevitable, therefore,
that the delegates had to take
into account not only the
developments under it but, most
of all, its declared objectives and
what the President, as its
administrator, was doing to
achieve them. In this connection,
it is worthy of mention that an
attempt to adjourn the convention
was roundly voted down to signify
the determination of the
delegates to finish earliest their
work, thereby to accomplish the
mission entrusted to them by the
people to introduce meaningful
reforms in our government and
society. Indeed, the constituent
labors gained rapid tempo, but in
the process, the delegates were
to realize that the reforms they
were formulating could be best
implemented if the martial law
powers of the President were to
be allowed to subsist even after
the ratification of the Constitution
they were approving. This
denouement was unusual.
Ordinarily, a constitution born out
of a crisis is supposed to provide
all the needed cures and can,
therefore, be immediately in full
force and effect after ratification.
Not so, with our 1973
Constitution, Yes, according to
the Supreme Court, 'there is no
more judicial obstacle to the new
Constitution being considered in
force and effect', but in truth, it is
not yet so in full. Let me explain.
To begin with, in analyzing the new
Constitution, we must be careful to distinguish
between the body or main part thereof and its
transitory provisions. It is imperative to do so
because the transitory provisions of our
Constitution are extraordinary in the sense that
obviously they have been designed to provide
not only for the transition of our government
from the presidential form under the past
charter to a parliamentary one as envisaged in
the new fundamental law, but also to
institutionalize, according to the President, the
reforms introduced thru the exercise of his
martial law powers. Stated differently, the
transitory provisions, as it has turned out, has
in effect established a transition government,
not, I am sure, perceived by many. It is a
government that is neither presidential nor
parliamentary. It is headed, of course, by
President Marcos who not on retains all his
powers under the 1935 Constitution but enjoys
as well those of the President and the Prime
Minister under the new Constitution. Most
importantly, he can and does legislate alone.
But to be more accurate, I should say that he
legislates alone in spite of the existence of the
interim National Assembly unequivocally
ordained by the Constitution, for the simple
reason that he has suspended the convening
of said assembly by issuing Proclamation No.
1103 purportedly 'in deference to the sovereign
will of the Filipino people' expressed in the
January 10-15, 1973 referendum.
Thus, we have here the unique case of a
qualified ratification. The whole Constitution
was submitted for approval or disapproval of
the people, and after the votes were counted
and the affirmative majority known, we were
told that the resulting ratification was subject to
the condition that the interim National
Assembly evidently established in the
Constitution as the distinctive and
indispensable element of a parliamentary form
of government should nevertheless be not
convened and that no elections should be held
for about seven years, with the consequence
that we have now a parliamentary government
without a parliament and a republic without any
regular election of its officials. And as you can
see, this phenomenon came into being not by
virtue of the Constitution but of the direct
mandate of the sovereign people expressed in
a referendum. In other words, in an
unprecedented extra-constitutional way, we
have established, wittingly or unwittingly, a
direct democracy through the Citizens
Assemblies created by Presidential Decree No.
86, which later on have been transformed into
barangays, a system of government
proclaimed by the President as 'a real
achievement in participatory democracy.' What
I am trying to say, my friends, is that as I
perceive it, what is now known as constitutional
authoritarianism means, in the final analysis,
that the fundamental source of authority of our
existing government may not be necessarily
found within the four corners of the Constitution
but rather in the results of periodic referendums
conducted by the Commission on Elections in a
manner well known to all of us This, as I see it,
is perhaps what the President means by saying
 HUMAN RIGHTS PRELIMFULLTEXT CASES
that under the new Constitution he has extra-
ordinary powers independently of martial law -
powers sanctioned directly by the people which
may not even be read in the language of the
Constitution. in brief, when we talk of the rule of
law nowadays, our frame of reference should
not necessarily be the Constitution but the
outcome of referendums called from time to
time by the President. The sooner we imbibe
this vital concept the more intelligent will our
perspective be in giving our support and loyalty
to the existing government. What is more, the
clearer will it be that except for the fact that all
the powers of government are being exercised
by the President, we - do not in reality have a
dictatorship but an experimental type of direct
democracy."
In the foregoing disquisition, I purposely made
no mention of the referendum of February 27,
1975. It is important to note, relative to the
main issue now before Us, that it was originally
planned to ask the people in that referendum
whether or not they would like the interim
National Assembly to convene, but the
Comelec to whom the task of preparing the
questions was assigned was prevailed upon
not to include any -such question anymore,
precisely because it was the prevalent view
even among the delegates to the Convention
as well as the members of the old Congress
concerned that that matter had already been
finally resolved in the previous referenda of
January and July 1973 in the sense that. the
Assembly should not be convened comparable
to res adjudicata.
It is my position that as a result of the political
developments since January 17, 1973 the
transitory provisions envisioning the convening
of the interim National Assembly have been
rendered legally inoperative. There is no doubt
in my mind that for the President to convoke
the interim National Assembly as such would
be to disregard the will of the people -
something no head of a democratic republican
state like ours should do. And I find it simply
logical that the reasons that motivated the
people to enjoin the convening of the Assembly
- the unusually large and unmanageable
number of its members and the controversial
morality of its automatic composition consisting
of all the incumbent elective national executive
and legislative officials under the Old
Constitution who would agree to join it and the
delegates themselves to the Convention who
had voted in favor of the Transitory Provisions -
apply not only to the Assembly as an ordinary
legislature but perhaps more to its being a
constituent body. And to be more realistic, it is
but natural to conclude that since the people
are against politicians in the old order having
anything to do with the formulation of national
policies, there must be more reasons for them
to frown on said politicians taking part in
amendment of the fundamental law, specially
because the particular amendment herein
involved calls for the abolition of the interim
National Assembly to which they belong and its
substitution by the Batasang Pambansa.
It is argued that in law, the qualified or
conditional ratification of a constitution is not
contemplated. I disagree. It is inconsistent with
the plenary power of the people to give or
withhold their assent to a proposed
Constitution to maintain that they can do so
only wholly. I cannot imagine any sound
principle that can be invoked to support the
theory that the proposing authority can limit the
power of ratification of the people. As long as
there are reliable means by which only partial
approval can be manifested, no cogent reason
exists why the sovereign people may not do so.
True it is that no proposed Constitution can be
perfect and it may therefore be taken with the
good and the bad in it, but when there are
feasible ways by which it can be determined
which portions of it, the people disapprove. it
would be stretching technicality beyond its
purported office to render the final authority -
the people impotent to act according to what
they deem best suitable to their interests.
In any event, I feel it would be of no
consequence to debate at length regarding the
legal feasibility of qualified ratification.
Proclamation 1103 categorically declares that:
WHEREAS, fourteen million nine
hundred seventy six thousand
five hundred sixty-one
(14,976.561) members of all the
Barangays voted for the adoption
of the proposed Constitution, as
against seven hundred forty-three
thousand eight hundred sixty-nine
(743,869) who voted for its
rejection; but a majority of those
who approved the new
Constitution conditioned their
votes on the demand that the
interim National Assembly
provided in its Transitory
Provisions should not be
convened.
and in consequence, the President has acted
accordingly by not convening the Assembly.
The above factual premises of Proclamation
1103 is not disputed by petitioners. Actually, it
is binding on the Court, the same being a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
political act of a coordinate department of the
government not properly assailed as arbitrary
or whimsical. At this point, it must be
emphasized in relation to the contention that a
referendum is only consultative, that
Proclamation 1103, taken together with
Proclamation 1102 which proclaimed the
ratification of the Constitution, must be
accorded the same legal significance as the
latter proclamation, as indeed it is part and
parcel if the Act of ratification of the
Constitution, hence not only persuasive but
mandatory. In the face of the incontrovertible
fact that the sovereign people have voted
against the convening of the interim National
Assembly, and faced with the problem of
amending the Constitution in order precisely to
implement the people's rejection of that
Assembly, the problem of constitutional
dimension that confronts Us, is how can any
such amendment be proposed for ratification
by the people?
To start with, it may not be supposed that just
because the office or body designed by the
constitutional convention to perform the
constituent function of formulating proposed
amendments has been rendered inoperative by
the people themselves, the people have
thereby foreclosed the possibility of amending
the Constitution no matter how desirable or
necessary this might be. In this connection, I
submit that by the very nature of the office of
the Presidency in the prevailing scheme of
government we have - it being the only political
department of the government in existence - it
is consistent with basic principles of
constitutionalism to acknowledge the
President's authority to perform the constituent
function, there being no other entity or body
lodged with the prerogative to exercise such
function.
There is another consideration that leads to the
same conclusion. It is conceded by petitioners
that with the non-convening of the interim
Assembly, the legislative authority has perforce
fallen into the hands of the President, if only to
avoid a complete paralysis of law-making and
resulting anarchy and chaos. It is likewise
conceded that the provisions of Section 3 (2) of
Article XVII invest the President with legislative
power for the duration of the transition period.
From these premises, it is safe to conclude that
in effect the President has been substituted by
the people themselves in place of the interim
Assembly. Such being the case, the President
should be deemed as having been granted
also the cognate prerogative of proposing
amendments to the Constitution. In other
words, the force of necessity and the cognate
nature of the act justify that the department
exercising the legislative faculty be the one to
likewise perform the constituent function that
was attached to the body rendered impotent by
the people's mandate. Incidentally, I reject
most vehemently the proposition that the
President may propose amendments to the
Constitution in the exercise of his martial law
powers. Under any standards, such a
suggestion cannot be reconciled with the Ideal
that a Constitution is the free act of the people.
It was suggested during the oral, argument that
instead of extending his legislative powers by
proposing the amendment to create a new
legislative body, the President should issue a
decree providing for the necessary
apportionment of the seats in the Regular
National Assembly and call for an election of
the members thereof and thus effect the
immediate normalization of the parliamentary
government envisaged in the Constitution.
While indeed procedurally feasible, the
suggestion overlooks the imperative need
recognized by the constitutional convention as
may be inferred from the obvious purpose of
the transitory provisions, for a period of
preparation and acquaintance by all concerned
with the unfamiliar distinctive features and
practices of the parliamentary system.
Accustomed as we are to the presidential
system, the Convention has seen to it that
there should be an interim parliament under the
present leadership, which will take the
corresponding measures to effectuate the
efficient and smooth transition from the present
system to the new one. I do not believe this
pattern set by the convention should be
abandoned.
The alternative of calling a constitutional
convention has also been mentioned. But, in
the first place, when it is considered that
whereas, under Section 1 (1) and (2) of Article
XVI, the regular National Assembly may call a
Constitutional Convention or submit such a call
for approval of the people, Section 15 of Article
XVII, in reference to interim National Assembly,
does not grant said body the prerogative of
calling a convention, one can readily
appreciate that the spirit of the Constitution
does not countenance or favor the calling of a
convention during the transition, if only
because such a procedure would be time
consuming, cumbersome and expensive. And
when it is further noted that the requirement as
to the number of votes needed for a proposal is
only a majority, whereas it is three-fourths in
respect to regular Assembly, and, relating this
point to the provision of Section 2 of Article XVI
to the effect that all ratification plebiscites must
 HUMAN RIGHTS PRELIMFULLTEXT CASES
be held "not later than three months after the
approval" of the proposed amendment by the
proposing authority, the adoption of the most
simple manner of amending the charter, as that
provided for in the assailed Presidential Decree
1033 suggests itself as the one most in accord
with the intent of the fundamental law.
There is nothing strange in adopting steps not
directly based on the letter of the Constitution
for the purpose of amending or changing the
same. To cite but one important precedent, as
explained by Mr. Justice Makasiar in his
concurring opinion in Javellana 2, the present
Constitution of the United States was neither
proposed nor ratified in the manner ordained
by the original charter of that country, the
Articles of Confederation and Perpetual Union.
In brief. if the convening and operation of the
interim National Assembly has been
effectuated through a referendum-plebiscite in
January, 1973, and ratified expressly and
impliedly in two subsequent referenda, those of
July, 1973 and February, 1975, why may not a
duly held plebiscite suffice for the purpose of
creating a substitute for that Assembly? It
should be borne in mind that after all, as
indicated in the whereas of the impugned
Presidential Decree, actually, the proposed
amendments were initiated by the barangays
and sanggunian members. In other words, in
submitting the amendments for ratification, the
President is merely acting as the conduit thru
whom a substantial portion of the people,
represented in the Katipunan ng Mga
Sanggunian, Barangay at Kabataang
Barangay, seek the approval of the people as a
whole of the amendments in question. If all
these mean that the sovereign people have
arrogated unto themselves the functions
relative to the amendment to the Constitution, I
would regard myself as totally devoid of legal
standing to question it, having in mind that the
most fundamental tenet on which our whole
political structure rests is that "sovereignty
resides in the people and all government
authority emanates from them."
In the light of the foregoing considerations, I
hold that Presidential Decree No. 1033 does
not infringe the Constitution, if only because
the specific provision it is supposed to infringe
does not exist in legal contemplation since it
was coevally made inoperative when the
people ratified the Constitution on January 17,
1973. I am fully convinced that there is nothing
in the procedure of amendment contained in
said decree that is inconsistent with the
fundamental principles of constitutionalism. On
the contrary, I find that the Decree, in issue
conforms admirably with the underlying tenet of
our government - the sovereignty and plenary
power of the people.
On the issue of whether or not October 16,
1976 is too proximate to enable the people to
sufficiently comprehend the issues and
intelligently vote in the referendum and
plebiscite set by Presidential Decree 1033, all I
can say is that while perhaps my other
colleagues are right in holding that the period
given to the people is adequate, I would leave
it to the President to consider whether or not it
would be wiser to extend the same. Just to
avoid adverse comments later I wish the
President orders a postponement. But whether
such postponement is ordered or not, date of
the referendum- plebiscite anywhere from
October 16, 1976 to any other later date, would
be of no vital import.
In conclusion, I vote to dismiss all the three
petitions before Us.
MAKASIAR, J., concurring and dissenting:
Since the validity or effectivity of the proposed
amendments is to be decided ultimately by the
people in their sovereign capacity, the question
is political as the term is defined in Tanada, et
al. vs. Cuenco, et al. (103 Phil. 1051), which is
a bar to any judicial inquiry, for the reasons
stated in Our opinion in Javellana, et al. vs.
Executive Secretary, et al. (L-36142); Tan, et
al. vs. Executive Secretary, et al. (L,36164);
Roxas, et al. vs Executive Secretary, et al. (L-
36165); Monteclaro, etc., et al. vs' Executive
Secretary, et al. (@36236); and Ditag et al. vs.
Executive Secretary, et al. (L-W283, March 31,
1973, 50 SCRA 30, 204-283). The procedure
for amendment is not important Ratification by
the people is all that is indispensable to
validate an amendment. Once ratified, the
method of making the proposal and the period
for submission become relevant.
The contrary view negates the very essence of
a republican democracy - that the people are
sovereign - and renders meaningless the
emphatic declaration in the very first provision
of Article II of the 1973 Constitution that the
Philippines is a republican state, sovereignty
resides in the people and all government
authority emanates from them. It is axiomatic
that sovereignty is illimitable The
representatives cannot dictate to the sovereign
people. They may guide them; but they cannot
supplant their judgment, Such an opposite view
likewise distrusts the wisdom of the people as
much as it despises their intelligence. It
evinces a presumptuous pretension to
 HUMAN RIGHTS PRELIMFULLTEXT CASES
intellectual superiority. There are thousands
upon thousands among the citizenry, who are
not in the public service, who are more learned
and better skilled than many of their elected
representatives.
Moreover, WE already ruled in Aquino, et al.
vs- Comelec, et al. (L 40004, Jan. 31, 1975, 62
SCRA 275, 298-302) that the President as
enforcer or administrator of martial rule during
the period of martial law can legislate; and that
he has the discretion as to when the convene
the interim National Assembly depending on
prevailing conditions of peace and order. In
view of the fact that the interim National
Assembly has not been convoked in obedience
to the desire of the people clearly expressed in
the 1973 referenda, the President therefore
remains the lone law-making authority while
martial law subsists. Consequently, he can also
exercise the power of the interim National
Assembly to propose amendments to the New
Constitution (Sec. 15,,Art. XVII If, as conceded
by petitioner Vicente Guzman (L-44684),
former delegate to the 1971 Constitutional
Convention which drafted the 1973
Constitution. the President, during the period of
martial law, can call a constitutional convention
for the purpose, admittedly a constituent
power, it stands to reason that the President
can likewise legally propose amendments to
the fundamental law.
ANTONIO, J., concurring:
I branches of government; or an
At the threshold, it is necessary to clarify what
is a "political question". It must be noted that
this device has been utilized by the judiciary "to
avoid determining questions it is ill equipped to
determine or that could be settled in any event
only with the effective support of the political
branches."1 According to Weston, judges,
whether "personal representatives of a truly
sovereign king, or taking their seats as the
creatures of a largely popular sovereignty
speaking through a written constitution, derive
their power by a delegation, which clearly or
obscurely as the case may be, deliminates and
delimits their delegated jurisdiction.* * * Judicial
questions * * * are those which the sovereign
has set to be decided in the courts. Political
questions, similarly, are those which the
sovereign has entrusted to the so-called
political departments of government or has
reserved to be settled by its own extra-
government or has reserved to be settled by its
own extra-governmental action."2 Reflecting a
similar concept, this Court has defined a
"political question" as a "matter which is to be
exercised by the people in their primary
political capacity or that has been specifically
delegated to some other department or
particular officer of the government, with
discretionary power to act."3 In other words, it
refers to those questions which, under the
Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which
full discretionary authority has been delegated
to the legislative or executive branch of
government.4
In determining whether an issue falls within the
political question category, the absence of
satisfactory creterion for a judicial
determination or the appropriateness of
attributing finality to the action of the political
departments of government is a dominant
consideration. This was explained by Justice
Brennan in Baker v. Carr,5 thus :
Prominent on the surface of any
case held to involve political
question is found a textually
demonstrable constitutional lack
of judicially discoverrable and
manageable standards for
resolving it; or the impossibility of
deciding without an initial policy
determination of a kind clearly for
non-judicial discretion; or the
impossibility of a court's
undertaking independent
resolution without expressing lack
of the respect due coordinate
unusual need for unquestioning
adherence to a political decision
already made; or the potentiality
of embarrassment from from
multifarious pronouncements by
various departments on one
question. . . .
To decide whether a matter has in a measure
been committed by the Constitution to another
branch of government or retained be the
people to be decided by them in their sovereign
capacity, or whether that branch exceeds
whatever authority has been committed, is
indeed a delicate exercise in constitutional
interpretation.
In Coleman v. Miller, 6 the United States
Supreme Court held that the efficacy of the
ratification by state legislatures of a
constitutional amendment is a political
question. On the question of whether the State
Legislature could constitutionally relative an
amendment, after the same had been
previously rejected by it, it was held that the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
ultimate authority over the question was in
Congress in the exercise of its control over the
promulgation of the adoption of the
amendment. And in connection with the second
question of whether the amendment has lost
its, vitality through the lapse of time, the Court
held that the question was likewise political,
involving "as it does ... an appraisal of a great
variety of relevant conditions, political, social
and economic, which can hardly be said to be
within the appropriate range of evidence
receivable in a court of justice and as to which
it would be an extravagant extension of juridical
authority to assert judicial notice as the basis of
deciding a controversy with respect to the
validity of an amendment actually ratified. On
the other hand, these conditions are
appropriate for the consideration of the political
departments of the Government. The questions
they involve are essentially political and not
justiciable." '
In their concurring opinions, Justices Black,
Roberts, Frankfurter and Douglas stressed
that:
The Constitution grants Congress
exclusive power to control
submission off constitutional
amendments. Final determination
by Congress their ratification by
three-fourths of the States has
taken place 'is conclusive upon
the courts.' In the exercise of that
power, Congress, of course, is
governed by the Constitution.
However, A whether submission,
intervening procedure for
Congressional determination of
ratification conforms to the
commands of the Constitution,
call for decisions by apolitical
department of questions of a t@
which this Court has frequently
designated 'political.' And
decision of a 'political question' by
the political department' to which
the Constitution has committed it
'conclusively binds the judges, as
well as all other officers, citizens
and subjects of ... government.
Proclamation under authority of
Congress that an amendment
has been ratified will carry with it
a solemn assurance by the
Congress that ratification has
taken place as the Constitution
commands. Upon this assurance
a proclaimed amendment must
be accepted as a part of the
Constitution, learning to the
judiciary its traditional authority of
interpretation. To the extent that
the Court's opinion in the present
case even by implieding assumes
a power to make judicial
interpretation of the exclusive
constitutional authority of
Congress over submission and
by ratification of amendments, we
are unable to agree.
Relying on this doctrine enunciated in Coleman
v. Miller supra this Court, in Mabanag v. Lopez
Vitol, 7 speaking through Mr. Justice Pedro
Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification,
is a political question. In the Mabang case, the
petitioners sought to prevent the enforcement
of a resolution of Congress proposing the
"Parity Amendment" to the Philippine
Constitution on the ground that it had not been
approved by the three-fourths vote of all the
members of each house as required be Article
XV of the 1935 Constitution. It was claimed that
three (3) Senators and eight (8) members of
the House of Representatives had been
suspended and that their membership was not
considered in the determination of the three-
fourths %- ore In dismissing the petition on the
ground that the question of the validity of the
proposal was political, the Court stated:
"If ratification of an amendment is a political
question, a proposal which leads to ratification
has to be a political question. The question to
steps complement each other in a scheme
intended to achieve a single objective. It is to
be noted that amendatory process as provided
in Section I of Article XV of the Philippine
Constitution 'consists of (only) two distinct
parts: proposal and ratification.' There is no
logic in attaching political character to one and
withholding that character from the other.
Proposal to amend the Constitution is a highly
political function performed by the Congress in
its sovereign legislative capacity and
committed to its charge by the Constitution
itself. ..." (At pages 4-5, Italics supplied.)
It is true that in Gonzales v. Comelec, 8 this
Court held that "the issue whether or not a
Resolution of Congress, acting as a constituent
assembly - violates the Constitution is
essentially justiciable, not political, and hence,
subject to judicial review." What was involved
in Gonzales, however, was not a proposed
What was involved in Gonzales, however, was
not a proposed amendment to the Constitution
but an act of Congress,9 submitting proposed
amendments to the Constitution. Similarly, in
Tolentino v. Commission an Elections, 10 what
 HUMAN RIGHTS PRELIMFULLTEXT CASES
was involved was not the validity of the
proposal to lower the voting age but rather that
of the resolution of the Constitutional
Convention submitting the proposal for
ratification. The question was whether
piecemeal amendments to the Constitution
could submitted to the people for approval or
rejection.
II
Here, the point has been stressed that the
President is acting as agent for and in behalf of
the people in proposing the amendment. there
can be no question that in the referendums of
January, 1973 and in the subsequent
referendums the people had clearly and
categorically rejected the calling of the interim
National Assembly. As stated in the main
opinion, the Lupang Tagapagpaganap of the
Katipunan ng mga Sanggunian, the
Pambansang Katipunan ng mga Barangay,
representing 42,000 barangays, the Kabataang
Barangay organizations and the various
sectoral groups had proposed the replacement
of the interim National Assembly. These
barangays and the Sanggunian assemblies are
effective instrumentalities through which the
desires of the people are articulated and
expressed. The Batasang Bayan (Legislative
Council), composed of nineteen (19) cabinet
members and nine (9) officials with cabinet
rank, and ninety-one (91) members of the
Lupang Tagapagpaganap (Executive
Committee) of the Katipunan ng mga
Sangguniang Bayani voted in their special
session to submit directly to the people in a
plebiscite on October 16, 1976 the afore-
mentioned constitutional amendments.
Through the Pambansang Katipunan by
Barangay and the Pampurok ng Katipunan
Sangguniang Bayan, the people have
expressed their desire not only to abolish the
interim National Assembly, but to replace it with
a more representative body acceptable to them
in order to effect the desirable constitutional
changes necessary to hasten the political
evolution of the government towards the
parliamentary system, while at the same time
ensuring that the gains of the New Society,
which are vital to the welfare of the people,
shall be safeguarded. The proposed
constitutional amendments, therefore,
represent a consensus of the people.
It would be futile to insist that the intemi
National Assembly should have been
convened to propose those amendments
pursuant to Section 15 of Article XVII of the
Constitution. This Court, in the case of Aquino
v. Commission or Elections,11 took judicial
notice of the fact that in the referendum of
January, 1973, a majority of those who
approved the new Constitution conditioned
their votes on the demand that the interim
National Assembly provided in the Transitory
Provisions should not be and the President "in
deference to the sovereign will of the Filipino
people" declared that the convening of said
body shall be suspended.12 As this Court
observed in the Aquino case:
His decision to defer the initial
convocation of the byiitttit
National Assembly was
supported by the sovereign
people at the by referendum in
January, 1973 when the people
voted to postpone the convening
of the interim National Assembly
until after at least seven (7) years
from the approval of the new
Constitution. And the reason why
the same question was
eliminated from the questions to
be submitted at the referendum
on February 27, 1975, is that
even some members of the
Congress and delegates of the
Constitutional Convention, who
are already byjso ofitto members
of the intetini National Assembly
are against such inclusion;
because the issue was already
bycciled in the January, 1973
referendum by the sovereign
people indicating thereby their
disenchantment with any
Assembly as the former
Congress failed to institutionalize
the reforms they demanded and
wasted public funds through
endless debates without relieving
the suffering of the general mass
of citizenry (p. 302.) The action of
the President in suspending the
convening of the interim National
Assembly has met the
overwhelming approval of the
people in subsequent referenda.
Since it was the action by the people that gave
binding force and effect to the new
Constitution, then it must be accepted as a
necessary consequence that their objection
against the immediate convening of the interim
National Assembly must be respected as a
positive mandate of the sovereign.
In the Philippines, which is a unitary state,
sovereignty "resides in the people and all
government authority emanates from them."13
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The term "People" as sovereign is
comprehensive in its context. The people, as
sovereign creator of all political reality, is not
merely the enfranchised citizens but the
political unity of the people. 14 It connotes,
therefore, a people which exists not only in the
urgent present but in the continuum of history.
The assumption that the opinion of The People
as voters can be treated as the expression of
the interests of the People as a historic
community was, to the distinguished American
journalist and public philosopher, Walter
Lipunan, unwarranted.
Because of the discrepancy
between The People as Voters
and the People as the corporate
nation, the voters have no title to
consider themselves the
proprietors of the commonwealth
and to claim that their interests
are Identical to the public interest.
A prevailing plurality of the voters
are not The People. The claim
that they are is a bogus title
invoked to justify the usurpation
of the executive power by
representative assemblies and
the intimidation of public men by
demagogue politicians. In fact
demagoguery can be described
as the sleight of hand by which a
faction of The People as voters
are invested with the authority of
The People. That is why so many
crimes are committed in the
People's name 15
In Gonzales v. Comelec, supra, the Court
clearly emphasized that the power to propose
amendments or to amend the Constitution is
part of the inherent power of the people as the
repository of sovereignty in a republican state.
While Congress may propose amendments to
the Constitution, it acts pursuant to authority
granted to it by the people through the
Constitution. Both the power to propose and
the authority to approve, therefore, inhere in
the people as the bearer of the Constitution
making power.
Absent an interim National Assembly upon
whom the people, through the Constitution,
have delegated the authority to exercise
constituent powers, it follows from necessity
that either the people should exercise that
power themselves or through any other
instrumentality they may choose. For Law, like
Nature, abhors a vacuum (natural vacuum
abhorret).
The question then is whether the President has
authority to act for the people in submitting
such proposals for ratification at the plebiscite
of October 16. The political character of the
question is, therefore, particularly manifest,
considering that ultimately it is the people who
will decide whether the President has such
authority. It certainly involves a matter which is
to be exercised by the people in their sovereign
capacity, hence, it is essentially political, not
judicial.
While it is true that the constituent power is not
to be confuse with legislative power in general
because the prerogative to propose
amendments is not embraced within the
context of ordinary lawmaking, it must be noted
that the proposals to be submitted for
ratification in the forthcoming referendum are,
in the final analysis, actually not of the
President but directly of the people themselves,
speaking through their authorized
instrumentalities.
As the Chief Justice aptly stated in his
concurring opinion in this case:
... The President merely
formalized the said proposals in
Presidential Decree No. 1033. It
being conceded in all quarters
that sovereignty resides in the
people and it having been
demonstrated that their
constituent power to amend the
Constitution has not been
delegated by them to any
instrumentality of the Government
during the present stage of the
transition period of our political
development, the conclusion is
ineluctable that their exertion of
that residuary power cannot be
vulnerable to any constitutional
challenge as beingultravires.
Accordingly, without venturing to
rule on whether or not the
President is vested with
constituent power - as it does not
appear necessary to do so in the
premises - the proposals here
challenged, being acts of the
sovereign people no less, cannot
be said to be afflicted with
unconstitutionality. A fortiori, the
concomitant authority to call a
plebiscite and to appropriate
funds therefor is even less
vulnerable not only because the
President, in exercising said
authority, has acted as a mere
 HUMAN RIGHTS PRELIMFULLTEXT CASES
ofiffet byf of the people who made
the proposals, but likewise
because the said authority is
legislative in nature rather than
constituent.
This is but a recognition that the
People of the Philippines have
the inherent, sole and exclusive
right of regulating their own
government, and of altering or
abolishing their Constitution
whenever it may be necessary to
their safety or happiness. There
appears to be no justification,
under the existing,
circumstances, for a Court to
create by implication a limitation
on - the sovereign power of the
people. As has been clearly
explained in a previous case:
There is nothing in the nature of
the submission which should
cause the free exercise of it to be
obstructed, or that could render it
dangerous to the stability of the
government; because the
measure derives all its vital force
from the action of the people at
the ballot box, and there can
never be danger in submitting in
an established form to a free
people, the proposition whether
they will change their
fundamental law The means
provided for the exercise of their
Sovereign right of changing their
constitution should receive such a
construction as not to trammel
the exercise of the right.
Difficulties and embarrassments
in its exercise are in derogation of
the right of free government,
which is inherent in the people;
and the best security against
tumult and revolution is the free
and unobstructed privilege to the
people of the State to change
their constitution in the mode
prescribed by the instrument.
III
The paramount consideration that impelled Us
to arrive at the foregoing opinion is the
necessity of ensuring popular control over the
constituent power. "If the people are to control
the constituent power - the power to make and
change the fundamental law of the State,"
observed Wheeler," "the process of
Constitutional change must not be based too
heavily upon existing agencies of government."
Indeed, the basic premise of republicanism is
that the ordinary citizen, the common man. can
be trusted to determine his political destiny.
Therefore, it is time that the people should be
accorded the fullest opportunity to decide the
laws that shall provide for their governance.
For in the ultimate analysis, the success of the
national endeavor shall depend on the vision,
discipline and I by ininess of the moqqqtai will
of every Filipino.
IN VIEW OF THE FOREGOING
CONSIDERATIONS, We vote to dismiss the
petitions.
Aquino, J., concur.
MUNOZ PALMA, J., dissenting:
I concur fully with the remarkably frank (so
characteristic of him) dissenting opinion of my
distinguished colleague, Justice Claudio
Teehankee. If I am writing this brief statement it
is only to unburden myself of some thoughts
which trouble my mind and leave my
conscience with no rest nor peace.
Generally, one who dissents from a majority
view of the Court takes a lonely and at times
precarious road, the burden byeing lightened
only by the thought that in this grave task of
administering justice, when matters of
conscience are at issue, one must be prepared
to espouse and embrace a rightful cause
however unpopular it may be.
1. That sovereignty resides in the people and
all government authority emanates from them
is a fundamental, basic principle of government
which cannot be disputed, but when the people
have opted to govern themselves under the
mantle of a written Constitution, each and
every citizen, from the highest to the lowliest,
has the sacred duty to respect and obey the
Character they have so ordained.
By the Constitution which they
establish, they not only tie up he
hands of their official agencies,
but their own hands as well; and
neither the officers of the state,
nor the whole people as an
aggregate body, are at liberty to
take action in opposition to this
fundamental law. (Cooley's
Constitutional Limitations, 7th Ed.
p. 56, Italics Our).
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The afore-quoted passage from the eminent
jurist and author Judge Cooley although based
on declarations of law of more than a century
ago, lays down a principle which to my mind is
one of the enduring cornerstones of the Rule of
Law. it is a principle with which I have been
familiar as a student of law under the tutelage
of revered Professors, Dr. Vicente G. Sinco
and Justice Jose P. Laurel, and which I pray
will prevail at all times to ensure the existence
of a free, stable, and civilized society.
The Filipino people,. wanting to ensure to
themselves a democratic republican form of
government, have promulgated a Constitution
whereby the power to govern themselves has
been entrusted to and distributed among three
branches of government; they have also
mandated in clear and unmistakable terms the
method by which provisions in their
fundamental Charter may be amended or
revised. Having done so, the people are bound
by these constitutional limitations. For while
there is no surrender or abdication of the
people's ultimate authority to amend, revise, or
adopt a new Constitution, sound reason
demands that they keep themselves within the
procedural bounds of the existing fundamental
law. The right of the people to amend or
change their Constitution if and when the need
arises is not to be denied, but we assert that
absent a revolutionary state or condition in the
country the change must be accomplished
through the ordinary, regular and legitimate
processes provided for in the Constitution.'
I cannot subscribe therefore to the view taken
by the Solicitor General that the people, being
sovereign, have the authority to amend the
Constitution even in a manner different from
and contrary to that expressly provided for in
that instrument, and that the amendatory
process is intended more as a limitation of a
power rather than a grant of power to a
particular agency and it should not be
construed as limiting the ultimate sovereign will
of the people to decide on amendments to the
Constitution .2 Such a view will seriously
undermine the very existence of a
constitutional government and will permit
anarchy and/or mob rule to set afoot and
prevail. Was it the Greek philosopher Plato
who warned that the rule of the mob is a
prelude to the rule of the tyrant?
I would use the following excerpt from Bernas,
S.J. 'The 1973 Philippine Constitution, Notes
and Cases" as relevant to my point:
. . . the amendatory provisions
are called a 'constitution of
sovereighty' because they define
the constitutional meaning of
'sovereignty of the people.'
Popular sovereignty, as
embodied in the Philippine
Constitution, is not extreme
popular sovereignty. As one
American writer put it:
A constitution like the American
one serves as a basic check
upon the popular will at any given
time. It is the distinctive function
of such written document to
classify certain things as legal
fundamentals; these
fundamentals may not be
changed except by the slow and
cumbersome process of
amendment. The people
themselves have decided, in
constitutional convention
assembled, to limit themselves
ana future generations in the
exercise of the sovereign power
which they would otherwise
possess. And it is precisely such
limitation that enables those
subject to governmental authority
to appeal from the people drunk
to the people sober in time of
excitement and hysteria. The
Constitution, in the neat phrase of
the Iowa court, is the protector of
the people against injury by the
.people. *
Truly, what need is there for providing in the
Constitution a process by which the
fundamental law may be amended if, after all,
the people by themselves can set the same at
naught even in times of peace when civil
authority reigns supreme? To go along with the
respondents' theory in this regard is to render
written Constitutions useless or mere "ropes of
sand allowing for a government of men instead
of one of laws. For it cannot be discounted that
a situation may arise where the people are
heralded to action at a point of a gun or by the
fiery eloquence of a demagogue, and where
passion overpowers reason, and mass action
overthrows legal processes. History has
recorded such instances, and I can think of no
better example than that of Jesus Christ of
Judea who was followed and loved by the
people while curing the sick, making the lame
walk and the blind see, but shortly was
condemned by the same people turned into
fanatic rabble crying out "Crucify Him, Crucify
Him" upon being incited into action by chief
 HUMAN RIGHTS PRELIMFULLTEXT CASES
priests and elders of Jerusalem. Yes, to quote
once more from Judge Cooley:
A good Constitution should be
beyond the reason of temporary
excitement and popular caprice
or passion. It is needed for
stability and steadiness; it must
yield to the thought of the people;
not to the whim of the people, or
the thought evolved in excitement
or hot blood, but the sober
second thought, which alone, if
the government is to be sale can
be allowed efficiency. ....
Changes in government are to be
feared unless the benefit is
certain." (quoted in Ellingham v.
Dye, 99 N.E. 1, 15,)3
Crawford v. Gilchrist 64 Fla. 41., 59., So. 963,
Ann. Cas. 1914B, 916; State v. Hall, 159 N.W.,
281; Opinion of Marshall, J. in State ex. rel.
Poster v. Marcus, 152 N.W., 419;
From Kochier v. Hill, Vol. 15, N.W., 609, we
quote:
xxx xxx xxx
It has been said that changes in
the constitution may be
introduced in disregard of its
provisions; that if the majority of
the people desire a change the
majority must be respected, no
matter how the change may be
effected; and that the change, if
revolution, is peaceful
resolution. ...
We fear that the advocates of this
new doctrine, in a zeal to
accomplish an end which the
majority of the people desire,
have looked at but one phase of
the question, and have not fully
considered the terrible
consequences which would
almost certainly follow a justify a transgression of the constitutional
recognition of the doctrine for
which they contend. It may be
that the incorporation of this
amendment in the constitution,
even if the constitution has to be
broken to accomplish it, would
not of itself produce any serious
results. But if it should be done by
sanctioning the doctrine
contended for, a precedent would
be set which would plague the
state for all future time. A
Banquo's ghost would arise at
our incantation which would not
down at our bidding.
xxx xxx xxx
We ought to ponder long before
we adopt a doctrine so fraught
with danger to republican
institutions. ...
x x x           x x x          x x x
Appellants' counsel cite and rely upon section
2, art. 1, of the constitution of the staff This
section is a portion of the bill of rights, and is as
follows: 'All political power is inherent in the
people. Government is instituted for the
protection, security, and benefit of of the
people; and they have the right at all times to
alter or reform the same, whenever the public
good may require.' Abstractly considered, there
can bye no doubt of the correctness of the
propositions embraced in this suction. These
principles are older than constitutions and older
than governments. The people did not derive
the rights referred to by on the constitution.
and, in their nature, thee are such that the
people cannot surrender them ... .
2. Presidential Decrees Nos. 991 and 1033
which call for a national referendum-plebiscite
on October 16, 1976 for the purpose, among
other things, of amending certain provisions of
the 1973 Constitution are null and void as they
contravene the express provisions on the
amending process of the 1973 Constitution laid
down in Article XVI, Section 1 (1) and Article
XVII, Section 15, more particularly the latter
which applies during the present transition
period. The Opinion of Justice Teehankee
discusses in detail this particular matter.
I would just wish to stress the point that
although at present there is no by tterint
National Assembly which may propose
amendments to the Constitution, the existence
of a so-called "vacuum" or "hiatus" does not
provisions on the manner of amending the
fundamental law. We cannot cure one infirmity
- the existence of a "vacuum" caused by the
non-convening of the interim National
Assembly - with another infirmity, that is, doing
violence to the Charter.
All great mutations shake and
disorder a state. Good does not
necessarily succeed evil; another
evil may succeed and a worse.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
(Am. Law Rev. 1889, p. 311.,
quoted in Ellingham v. Dye,
supra, p. 15)
Respondents contend that the calling of the
referendum-plebiscite for the purpose indicated
is a step necessary to restore the state of
normalcy in the country. To my mind, the only
possible measure that will lead our country and
people to a condition of normalcy is the lifting
or ending of the state of martial law. If I am
constrained to make this statement it is
because so much stress was given during the
hearings of these cases on this particular point,
leaving one with the impression that for
petitioners to contest the holding of the October
16 referendum-plebiscite is for them to assume
a position of blocking or installing the lifting of
martial law, which I believe is unfair to the
petitioners. Frankly, I cannot see the
connection between the two. My esteemed
colleagues should pardon me therefore if I had
ventured to state that the simple solution to the
simple solution to the present dilemma is the
lifting of martial law and the implementation of
the constitutional provisions which will usher in
the parliamentary form of government ordained
in the Constitution, which, as proclaimed in
Proclamation 1102, the people themselves
have ratified.
If the people have indeed ratified the 1973
Constitution, then they are bound by their act
and cannot escape from the pretended
unfavorable consequences thereof, the only y
being to set in motion the constitutional
machinery by which the supposed desired
amendments may properly be adopted and
submitted to the electorate for ratification.
Constitutional processes are to be observed
strictly, if we have to maintain and preserve the
system of government decreed under the
fundamental Charter. As said by Justice
Enrique Fernando in Mutuc vs. Commission on
Elections
... The concept of the Constitution
as the fundamental law, setting
forth the criterion for the validity
of any public act whether
proceeding from the highest
official or the lowest funcitonary,
is a postulate of our system of
government. That is to manifest
fealty to the rule of law, with
priority accorded to that which
occupies the topmost rung in the
legal hierarchy. ... (36 SCRA,
228, 234, italics Ours)
A contrary view would lead to disastrous
consequences for, in the words of Chief Justice
Cox of the Supreme Court of Indiana in
Ellingham v. Dye, (supra, p. 7) liberty and
popular sovereignty are not meant to give rein
to passion or thoughtless impulse but to allow
the exercise of power by the people for the
general good by tistlercoitaitt restraints of
law.3 . The true question before Us is is one of
power. Does the incumbent President of the
Philippines possess constituent powers?
Again, the negative answer is explained in
detail in the dissenting opinion of Justice
Teehankee.
Respondents would justify the incumbent
President's exercise of constituent powers on
theory that he is vested with legislative powers
as held by this Court in Benigno S. Aquino, Jr.,
et al. vs. Commission on Elections, et al., L-
40004, January 31, 1975. 1 wish to stress that
although in my separate opinion in said case I
agreed that Section 3 (2) of the Transitory
provisions grants to the incumbent President
legislative powers, I qualified my statement as
follows:
.... As to, whether, or not, this
unlimited legislative qqqjwwel of
the President continues by exist
even after the ratification of the
Constitution is a matter which I
am not ready to concede at the
moment, and which at any rate I
believe is not essential in
resolving this Petition for reasons
to be given later. Nonetheless, I
hold the view that the President is
empowered to issue
proclamations, orders, decrees,
etc. to carry out and implement
the objectives of the proclamation
of martial law be it under the
1935 or 1973 Constitution, and
for the orderly and efficient
functioning of the government, its
instrumentalities, and agencies.
This grant of legislative power is
necessary to fill up a vacuum
during the transition period when
the interim National Assembly is
not yet convened and functioning,
for otherwise, there will be a
disruption of official functions
resulting in a collapse of the
government and of the existing
social order. (62 SCRA, pp.
275,347)
I believe it is not disputed that legislative power
is essentially different from constituent power;
 HUMAN RIGHTS PRELIMFULLTEXT CASES
one does not encompass the other unless so
specified in the Charter, and the 1973
Constitution contains provisions in this regard.
This is well-explained in Justice Teehankee's
Opinion. The state of necessity brought about
by the current political situation, invoked by the
respondents, provides no source of power to
propose amendments to the existing
Constitution. Must we "bend the Constitution to
suit the law of the hour or cure its defects "by
inflicting upon it a wound which nothing can
heal commit one assault after the other "until
all respect for the fundamental law is lost and
the powers of government are just what those
in authority please to call them?'"5 Or can we
now ignore what this Court, speaking through
Justice Barredo, said in Tolentino vs. Comelec:
... let those who would put aside,
invoking grounds at best
controversial, any mandate of the
fundamental law purportedly by
order to attain some laudable
objective bear in mind that
someday somehow others with
purportedly more laudable
objectives may take advantages
of the precedent in continue the
destruction of the Constitution,
making those who laid down the
precedent of justifying deviations
from the requirements of the
Constitution the victims of their
own folly. 6
Respondents emphatically assert that the final
word is the people's word and that ultimately it
is in the hands of the people where the final
decision rests. (Comment, pp. 18, 19, 22)
Granting in gratia argument that it is so, let it be
an expression of the will of the people a normal
political situation and not under the aegis of
martial rule for as I have stated in Aquino vs.
Comelec, et al., supra, a referendum (and now
a plebiscite) held under a regime of martial law
can be of no far reaching significance because
it is being accomplished under an atmosphere
or climate of fear as it entails a wide area of
curtailment and infringement of individual
rights, such as, human liberty, property rights,
rights of free expression and assembly,
protection against unreasonable searches and
seizures, liberty of abode and of travel, and so
on.
4. The other issues such as the sufficiency and
proper submission of the proposed
amendments for ratification by the people are
expounded in Justice Teehankee's Opinion. I
wish to stress indeed that it is incorrect to state
that the thrust of the proposed amendments is
the abolition of the interim National Assembly
and its substitution with an "interim Batasang
Pambansa their in by in Proposed amendment
No. 6 will permit or allow the concentration of
power in one man - the Executive - Prime
Minister or President or whatever you may call
him - for it gives him expressly (which the 1973
Constitution or the 1935 Constitution does not)
legislative powers even during the existence of
the appropriate legislative body, dependent
solely on the executive's judgment on the
existence of a grave emergency or a threat or
imminence thereof **
I must be forgiven if, not concerned with the
present, I am haunted however by what can
happen in the future, when we shall all be
gone. Verily, this is a matter of grave concern
which necessitates full, mature, sober
deliberation of the people but which they can
do only in a climate of freedom without the
restraints of martial law. I close, remembering
what Claro M. Recto, President of the
Constitutional Convention which drafted the
1935 Philippine Constitution, once said: .
... Nor is it enough that our
people possess a written
constitution in order that their
government may be called
constitutional. To be deserving of
this name, and to drive away all
lanirer of anarchy as well as of
dictatorship whether by one man
or a few, it is necessary that both
the government authorities and
the people faithfully observe and
obey the constitution, and that the
citizens be duly conversant not
only with their rights but also with
their duties...7
Jose P. Laurel who served his people as
Justice of the Supreme Court of this country
gave this reminder; the grave and perilous task
of halting transgressions and vindicating
cherished rights is reposed mainly oil the
Judiciary and therefore let the Courts be the
vestal keepers of the purity and sanctity of our
Constitution.' On the basis of the foregoing, I
vote to declare Presidential Decrees Nos. 991
and 1033 unconstitutional and enjoin the
implementation thereof.
CONCEPCION JR., J., concurring:
I vote for the dismissal of the petitions.
1. The issue is not political and therefore
justiciable.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The term "political question", as this Court has
previously defined, refers to those questions
which, under the constitution, are to be decided
by the people in their sovereign capacity, or in
regard to which full discretionary authority has
been delegated to the Legislature or executive
branch of the Government. It is concerned with
the issues dependent upon the wisdom, not
legality, of a particular measure.1
Here, the question raised is whether the
President has authority to propose to the
people amendments to the Constitution which
the petitioners claim is vested solely upon the
National Assembly, the constitutional
convention called for the purpose, and the by
the National Assembly. This is not a political
question since it involves the determination of
conflicting claims of authority under the
constitution.
In Gonzales vs. Comelec, 2 this Court,
resolving the issue of whether or not a
Resolution of Congress, acting as a constituent
assembly, violates the Constitution, ruled that
the question is essentially justiciable, not
political, and hence, subject to judicial review.
In Tolentino vs. Comelec 3 this Court finally
dispelled all doubts as to its position regarding
its jurisdiction vis-a-vis the constitutionality of
the acts of Congress, acting as a constituent
assembly, as well as those of a constitutional
convention called for the purpose of proposing
amendments to the constitution. Insofar as
observance of constitutional provisions on the
procedure for amending the constitution is
concerned, the issue is cognizable by this
Court under its powers of judicial review.
2. As to the merits, a brief backdrop of the
decision to hold the referendum-plebiscite will
help resolve the issue. It is to be noted that
under the 1973 Constitution, an interim
National Assembly was organized to bring
about an orderly transition from the presidential
to the parliamentary system of government.'
The people, however, probably distrustful of
the members who are old time politicians and
constitutional delegates who had voted
themselves by to membership in the interim
National Assembly, voted against the
convening of the said interim assembly for at
least seven years thus creating a political
stalemate and a consequent delay' in the
transformation of the government into the
parliamentary system. To resolve the impasse,
the President, at the instance of the barangays
and sanggunian assemblies through their duly
authorized instrumentalities who recommended
a study of the feasibility of abolishing and
replacing the by interim National Assembly with
another interim body truly representative of the
people in a reformed society, issued
Presidential Decree No. 991, on September 2,
1976, calling for a national referendum on
October -16, 1976 to ascertain the wishes of
the people as to the ways and means that may
be available to attain the objective; providing
for a period of educational and information
campaign on the issues; and establishing the
mechanics and manner for holding thereof. But
the people, through their barangays, addressed
resolutions to the Batasang Bayan, expressing
their desire to have the constitution amended,
thus prompting the President to issue
Presidential Decree No. 1033, stating the
questions to @ submitted to the people in the
referendum-plebiscite on October 16,1976.
As will be seen, the authority to amend the
Constitution was removed from the interim
National Assembly and transferred to the seat
of sovereignty itself. Since the Constitution
emanates from the people who are the
repository of all political powers, their authority
to amend the Constitution through the means
they have adopted, aside from those
mentioned in the Constitution, cannot be
gainsaid. Not much reflection is also needed to
show that the President did not exercise his
martial law legislative powers when he
proposed the amendments to the Constitution.
He was merely acting as an instrument to carry
out the will of the people. Neither could he
convene the interim National Assembly, as
suggested by the petitioners, without doing
violence to the people's will expressed
overwhelmingly when they decided against
convening the interim assembly for at least
seven years.
3. The period granted to the people to consider
the proposed amendments is reasonably long
and enough to afford intelligent discussion of
the issues to be voted upon. PD 991 has
required the barangays to hold assemblies or
meetings to discuss and debate on the
referendum questions, which in fact they have
been doing. Considering that the proposed
amendments came from the representatives of
the people themselves, the people must have
already formed a decision by this time on what
stand to take on the proposed amendments
come the day for the plebiscite. Besides, the
Constitution itself requires the holding of a
plebiscite for the ratification of an amendment
not later than three (3) months after the
approval of such amendment or revision but
without setting a definite period within which
such plebiscite shall not be held. From this I
can only conclude that the framers of the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Constitution desired that only a short period Power—a unique event in
shall elapse from the approval of such modern history that-made
amendment or resolution to its ratification by possible the Peaceful revolution
the people. in the Philippines in 1986.

Footnotes Faced with the task of

dramatising these rerkble events,
screenwriter David Williamson
and history Prof Al McCoy have
G.R. No. 82380 April 29, 1988 chosen a "docu-drama" style and
created [four] fictitious characters
AYER PRODUCTIONS PTY. LTD. and to trace the revolution from the
McELROY & McELROY FILM death of Senator Aquino, to the
PRODUCTIONS, petitioners, Feb revolution and the fleeing of
vs. Marcos from the country.
HON.IGNACIO M. CAPULONG and JUAN
PONCE ENRILE, respondents. These character stories have
been woven through the real
G.R. No. 82398 April 29, 1988 events to help our huge
international audience
HAL MCELROY petitioner, understand this ordinary period
vs. inFilipino history.
HON. IGNACIO M. CAPULONG, in his
capacity as Presiding Judge of the Regional First, there's Tony O'Neil, an
Trial Court of Makati, Branch 134 and JUAN American television journalist
PONCE ENRILE, respondents. working for major network. Tony
reflects the average American
attitude to the Phihppinence —
once a colony, now the home of
FELICIANO, J.: crucially important military bases.
Although Tony is aware of the
Petitioner Hal McElroy an Australian film corruption and of Marcos'
maker, and his movie production company, megalomania, for him, there
Petitioner Ayer Productions pty Ltd. (Ayer appears to be no alternative to
Productions), 1 envisioned, sometime in 1987, Marcos except the Communists.
the for commercial viewing and for Philippine
and international release, the histolic peaceful Next, Angie Fox a fiery Australian
struggle of the Filipinos at EDSA (Epifanio de photo-journalist. A 'new girl in
los Santos Avenue). Petitioners discussed this town,' she is quickly caught up in
Project with local movie producer Lope V. the events as it becomes dear
Juban who suggested th they consult with the that the time has come for a
appropriate government agencies and also with change. Through Angle and her
General Fidel V. Ramos and Senator Juan relationship with one of the
Ponce Enrile, who had played major roles in Reform Army Movement Colonels
the events proposed to be filmed. (a fictitious character), we follow
the developing discontent in the
The proposed motion picture entitled "The Four armed forces. Their dislike for
Day Revolution" was endorsed by the Movie General Ver, their strong loyalty
Television Review and Classification Board as to Defense Minister Enrile, and
wel as the other government agencies ultimately their defection from
consulted. General Fidel Ramos also signified Marcos.
his approval of the intended film production.
The fourth fictitious character is
In a letter dated 16 December 1987, petitioner Ben Balano, a middle-aged editor
Hal McElroy informed private respondent Juan of a Manila newspaper who
Ponce Enrile about the projected motion despises the Marcos regime and
picture enclosing a synopsis of it, the full text of is a supporter an promoter of
which is set out below: Cory Aquino. Ben has two
daughters, Cehea left wing
The Four Day Revolution is a six lawyer who is a secret member of
hour mini-series about People the New People's Army, and
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Eva--a -P.R. girl, politically
moderate and very much in love
with Tony. Ultimately, she must
choose between her love and the
revolution.
Through the interviews and
experiences of these central
characters, we show the complex
nature of Filipino society, and
thintertwining series of events
and characters that triggered
these remarkable changes.
Through them also, we meet all
of the principal characters and
experience directly dramatic
recreation of the revolution. The
story incorporates actual
documentary footage filmed
during the period which we hope
will capture the unique
atmosphere and forces that
combined to overthrow President
Marcos.
David Williamson is Australia's
leading playwright with some 14
hugely successful plays to his
credit(Don's Party,' 'The Club,'
Travelling North) and 11 feature
films (The Year of Living
Dangerously,' Gallipoli,' 'Phar
Lap').
Professor McCoy (University of
New South Wales) is an
American historian with a deep
understanding of the Philippines,
who has worked on the research
for this project for some 18
months. Together with Davi
Wilhamgon they have developed
a script we believe accurately
depicts the complex issues and
events that occurred during th
period .
The six hour series is a McElroy
and McElroy co-production with
Home Box Office in American,
the Australian Broadcast
Corporation in Australia and
Zenith Productions in the United
Kingdom
The proposed motion picture would be
essentially a re-enact. ment of the events that
made possible the EDSA revolution; it is
designed to be viewed in a six-hour mini-series
television play, presented in a "docu-drama"
style, creating four (4) fictional characters
interwoven with real events, and utilizing actual
documentary footage as background.
On 21 December 1987, private respondent
Enrile replied that "[he] would not and will not
approve of the use, appropriation, reproduction
and/or exhibition of his name, or picture, or that
of any member of his family in any cinema or
television production, film or other medium for
advertising or commercial exploitation" and
further advised petitioners that 'in the
production, airing, showing, distribution or
exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual)
should not be made to [him] or any member of
his family, much less to any matter purely
personal to them.
It appears that petitioners acceded to this
demand and the name of private respondent
Enrile was deleted from the movie script, and
petitioners proceeded to film the projected
motion picture.
On 23 February 1988, private respondent filed
a Complaint with application for Temporary
Restraining Order and Wilt of Pretion with the
Regional Trial Court of Makati, docketed as
Civil Case No. 88-151 in Branch 134 thereof,
seeking to enjoin petitioners from producing the
movie "The Four Day Revolution". The
complaint alleged that petitioners' production of
the mini-series without private respondent's
consent and over his objection, constitutes an
obvious violation of his right of privacy. On 24
February 1988, the trial court issued ex-parte a
Temporary Restraining Order and set for
hearing the application for preliminary
injunction.
On 9 March 1988, Hal McElroy flied a Motion to
Dismiss with Opposition to the Petition for
Preliminary Injunction contending that the mini-
series fim would not involve the private life of
Juan Ponce Enrile nor that of his family and
that a preliminary injunction would amount to a
prior restraint on their right of free expression.
Petitioner Ayer Productions also filed its own
Motion to Dismiss alleging lack of cause of
action as the mini-series had not yet been
completed.
In an Order 2 dated 16 March 1988, respondent
court issued a writ of Preliminary Injunction
against the petitioners, the dispositive portion
of which reads thus:
WHEREFORE, let a writ of
preliminary injunction be issued,
ordering defendants, and all
persons and entities employed or
 HUMAN RIGHTS PRELIMFULLTEXT CASES
under contract with them,
including actors, actresses and
members of the production staff
and crew as well as all persons
and entities acting on defendants'
behalf, to cease and desist from
producing and filming the mini-
series entitled 'The Four Day
Revolution" and from making any
reference whatsoever to plaintiff
or his family and from creating
any fictitious character in lieu of
plaintiff which nevertheless is
based on, or bears rent
substantial or marked
resemblance or similarity to, or is
otherwise Identifiable with,
plaintiff in the production and any
similar film or photoplay, until
further orders from this Court,
upon plaintiff's filing of a bond in
the amount of P 2,000,000.00, to
answer for whatever damages
defendants may suffer by reason
of the injunction if the Court
should finally decide that plaintiff
was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions
came to this Court by a Petition for certiorari
dated 21 March 1988 with an urgent prayer for
Preliminary Injunction or Restraining Order,
which petition was docketed as G.R. No. L-
82380.
A day later, or on 23 March 1988, petitiioner
Hal McElroy also filed separate Petition for
certiorari with Urgent Prayer for a Restraining
Order or Preliminary Injunction, dated 22
March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the
petitions were consolidated and private
respondent was required to file a consolidated
Answer. Further, in the same Resolution, the
Court granted a Temporary Restraining Order
partially enjoining the implementation of the
respondent Judge's Order of 16 March 1988
and the Writ of Preliminary Injunction issued
therein, and allowing the petitioners to resume
producing and filming those portions of the
projected mini-series which do not make any
reference to private respondent or his family or
to any fictitious character based on or
respondent.
Private respondent seasonably filed his
Consolidated Answer on 6 April 1988 invoking
in the main a right of privacy.
I
The constitutional and legal issues raised by
the present Petitions are sharply drawn.
Petitioners' claim that in producing and "The
Four Day Revolution," they are exercising their
freedom of speech and of expression protected
under our Constitution. Private respondent,
upon the other hand, asserts a right of privacy
and claims that the production and filming of
the projected mini-series would constitute an
unlawful intrusion into his privacy which he is
entitled to enjoy.
Considering first petitioners' claim to freedom
of speech and of expression the Court would
once more stress that this freedom includes the
freedom to film and produce motion pictures
and to exhibit such motion pictures in theaters
or to diffuse them through television. In our day
and age, motion pictures are a univesally
utilized vehicle of communication and medium
Of expression. Along with the press, radio and
television, motion pictures constitute a principal
medium of mass communication for
information, education and entertainment.
In Gonzales v. Katigbak, 3 former Chief Justice
Fernando, speaking for the Court, explained:
1. Motion pictures are important
both as a medium for the
communication of Ideas and the
expression of the artistic impulse.
Their effect on the perception by
our people of issues and public
officials or public figures as well
as the pre cultural traits is
considerable. Nor as pointed out
in Burstyn v. Wilson (343 US 495
[19421) is the Importance of
motion pictures as an organ of
public opinion lessened by the
fact that they are designed to
entertain as well as to inform'
(Ibid, 501). There is no clear
dividing line between what
involves knowledge and what
affords pleasure. If such a
distinction were sustained, there
is a diminution of the basic right
to free expression. ...4
This freedom is available in our country both to
locally-owned and to foreign-owned motion
picture companies. Furthermore the
circumstance that the production of motion
picture films is a commercial activity expected
 HUMAN RIGHTS PRELIMFULLTEXT CASES
to yield monetary profit, is not a disqualification
for availing of freedom of speech and of
expression. In our community as in many other
countries, media facilities are owned either by
the government or the private sector but the
private sector-owned media facilities commonly
require to be sustained by being devoted in
whole or in pailt to revenue producing activities.
Indeed, commercial media constitute the bulk
of such facilities available in our country and
hence to exclude commercially owned and
operated media from the exerciseof
constitutionally protected om of speech and of
expression can only result in the drastic
contraction of such constitutional liberties in our
country.
The counter-balancing of private respondent is
to a right of privacy. It was demonstrated
sometime ago by the then Dean Irene R.
Cortes that our law, constitutional and
statutory, does include a right of privacy. 5 It is
left to case law, however, to mark out the
precise scope and content of this right in
differing types of particular situations. The right
of privacy or "the right to be let alone," 6 like the
right of free expression, is not an absolute
right. A limited intrusion into a person's privacy
has long been regarded as permissible where
that person is a public figure and the
information sought to be elicited from him or to
be published about him constitute of apublic
character. 7 Succinctly put, the right of privacy
cannot be invoked resist publication and
dissemination of matters of public
interest. 8 The interest sought to be protected
by the right of privacy is the right to be free
from unwarranted publicity, from
the wrongful publicizing of the private affairs
and activities of an individual which are outside
the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which
private respondent relies heavily, recognized a
right to privacy in a context which included a
claim to freedom of speech and of
expression. Lagunzad involved a suit fortion
picture producer as licensee and the widow
and family of the late Moises Padilla as
licensors. This agreement gave the licensee
the right to produce a motion Picture Portraying
the life of Moises Padilla, a mayoralty
candidate of the Nacionalista Party for the
Municipality of Magallon, Negros Occidental
during the November 1951 elections and for
whose murder, Governor Rafael Lacson, a
member of the Liberal Party then in power and
his men were tried and convicted. 11 In the
judgment of the lower court enforcing the
licensing agreement against the licensee who
had produced the motion picture and exhibited
it but refused to pay the stipulated royalties, the
Court, through Justice Melencio-Herrera, said:
Neither do we agree with
petitioner's subon that the
Licensing Agreement is null and
void for lack of, or for having an
illegal cause or consideration,
while it is true that petitioner bad
pled the rights to the book entitled
"The Moises Padilla Story," that
did not dispense with the need for
prior consent and authority from
the deceased heirs to portray
publicly episodes in said
deceased's life and in that of his
mother and the member of his
family. As held in Schuyler v.
Curtis, ([1895],147 NY 434,42 NE
31 LRA 286.49 Am St Rep 671),
'a privilege may be given the
surviving relatives of a deperson
to protect his memory, but the
privilege wts for the benefit of the
living, to protect their feelings and
to preventa violation of their own
rights in the character and
memory of the deceased.'
Petitioners averment that private
respondent did not have any
property right over the life of
Moises Padilla since the latter
was a public figure, is neither well
taken. Being a public figure ipso
facto does not automatically
destroy in toto a person's right to
privacy. The right to invade a
person's privacy to disseminate
public information does not
extend to a fictional or novelized
representation of a person, no
matter how public a he or she
may be (Garner v. Triangle
Publications, DCNY 97 F. Supp.,
SU 549 [1951]). In the case at
bar, while it is true that petitioner
exerted efforts to present a true-
to-life Story Of Moises Padilla,
petitioner admits that he included
a little romance in the film
because without it, it would be a
drab story of torture and
brutality. 12
In Lagunzad, the Court had need, as we have
in the instant case, to deal with contraposed
claims to freedom of speech and of expression
and to privacy. Lagunzad the licensee in effect
claimed, in the name of freedom of speech and
expression, a right to produce a motion picture
 HUMAN RIGHTS PRELIMFULLTEXT CASES
biography at least partly "fictionalized" of
Moises Padilla without the consent of and
without paying pre-agreed royalties to the
widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in
petitioners contention that the
Licensing Agreement infringes on
the constitutional right of freedom
of speech and of the press, in
that, as a citizen and as a
newspaperman, he had the right
to express his thoughts in film on
the public life of Moises Padilla
without prior restraint.The right
freedom of expression, indeed,
occupies a preferred position in
the "hierarchy of civil liberties"
(Philippine Blooming Mills
Employees Organization v.
Philippine Blooming Mills Co.,
Inc., 51 SCRA 191 [1963]). It is
not, however, without limitations.
As held in Gonzales v.
Commission on Elections, 27
SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the
clear and present danger rule is
such a limitation. Another
criterion for permissible limitation
on freedom of speech and the
press, which includes such
vehicles of the mass media as
radio, television and the movies,
is the "balancing of interest test"
(Chief Justice Enrique M.
Fernando on the Bill of Rights,
1970 ed. p. 79). The principle
"requires a court to take
conscious and detailed
consideration of the interplay of
interests observable in given
situation or type of situation"
(Separation Opinion of the late
Chief Justice Castro in Gonzales
v. Commission on
Elections, supra, p. 899).
In the case at bar, the interests
observable are the right to
privacy asserted by respondent
and the right of freedom of
expression invoked by petitioner.
taking into account the interplay
of those interests, we hold
that under the particular
circumstances presented, and
considering the obligations
assumed in the Licensing
Agreement entered into by
petitioner, the validity of such
agreement will have to be upheld
particularly because the limits of
freedom of expression are
reached when expression
touches upon matters of
13
essentially private concern." 
Whether the "balancing of interests test" or the
clear and present danger test" be applied in
respect of the instant Petitions, the Court
believes that a different conclusion must here
be reached: The production and filming by
petitioners of the projected motion picture "The
Four Day Revolution" does not, in the
circumstances of this case, constitute an
unlawful intrusion upon private respondent's
"right of privacy."
1. It may be observed at the outset that what is
involved in the instant case is a prior and direct
restraint on the part of the respondent Judge
upon the exercise of speech and of expression
by petitioners. The respondent Judge has
restrained petitioners from filming and
producing the entire proposed motion picture. It
is important to note that in Lagunzad, there
was no prior restrain of any kind imposed upon
the movie producer who in fact completed and
exhibited the film biography of Moises Padilla.
Because of the speech and of expression, a
weighty presumption of invalidity vitiates. 14 The
invalidity of a measure of prior restraint
doesnot, of course, mean that no subsequent
liability may lawfully be imposed upon a person
claiming to exercise such constitutional
freedoms. The respondent Judge should have
stayed his hand, instead of issuing an ex-parte
Temporary Restraining Order one day after
filing of a complaint by the private respondent
and issuing a Preliminary Injunction twenty (20)
days later; for the projected motion picture was
as yet uncompleted and hence not exhibited to
any audience. Neither private respondent nor
the respondent trial Judge knew what the
completed film would precisely look like. There
was, in other words, no "clear and present
danger" of any violation of any right to privacy
that private respondent could lawfully assert.
2. The subject matter of "The Four Day
Revolution" relates to the non-bloody change
of government that took place at Epifanio de
los Santos Avenue in February 1986, and the
trian of events which led up to that
denouement. Clearly, such subject matter is
one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The
 HUMAN RIGHTS PRELIMFULLTEXT CASES
subject thus relates to a highly critical stage in entertainment. The list is,
the history of this countryand as such, must be however, broader than this. It
regarded as having passed into the public includes public officers, famous
domain and as an appropriate subject for inventors and explorers, war
speech and expression and coverage by any heroes and even ordinary
form of mass media. The subject mater, as set soldiers, an infant prodigy, and no
out in the synopsis provided by the petitioners less a personage than the Grand
and quoted above, does not relate to the Exalted Ruler of a lodge. It
individual life and certainly not to the private life includes, in short, anyone who
of private respondent Ponce Enrile. Unlike in has arrived at a position where
Lagunzad, which concerned the life story of public attention is focused upon
Moises Padilla necessarily including at least his him as a person.
immediate family, what we have here is not a
film biography, more or less fictionalized, of Such public figures were held to
private respondent Ponce Enrile. "The Four have lost, to some extent at least,
Day Revolution" is not principally about, nor is their tight to privacy. Three
it focused upon, the man Juan Ponce Enrile' reasons were given, more or less
but it is compelled, if it is to be historical, to indiscrimately, in the decisions"
refer to the role played by Juan Ponce Enrile in that they had sought publicity and
the precipitating and the constituent events of consented to it, and so could not
the change of government in February 1986. complaint when they received
it; that their personalities and
3. The extent of the instrusion upon the life of their affairs has already public,
private respondent Juan Ponce Enrile that and could no longer be regarded
would be entailed by the production and as their own private business;
exhibition of "The Four Day Revolution" would, and that the press had a
therefore, be limited in character. The extent of privilege, under the Constitution,
that intrusion, as this Court understands the to inform the public about those
synopsis of the proposed film, may be who have become legitimate
generally described as such intrusion as is matters of public interest. On one
reasonably necessary to keep that film a or another of these grounds, and
truthful historical account. Private respondent sometimes all, it was held that
does not claim that petitioners threatened to there was no liability when they
depict in "The Four Day Revolution" any part of were given additional publicity, as
the private life of private respondent or that of to matters legitimately within the
any member of his family. scope of the public interest they
had aroused.
4. At all relevant times, during which the
momentous events, clearly of public concern, The privilege of giving publicity to
that petitioners propose to film were taking news, and other matters of public
place, private respondent was what Profs. interest, was held to arise out of
Prosser and Keeton have referred to as a the desire and the right of the
"public figure:" public to know what is going on in
the world, and the freedom of the
A public figure has been defined press and other agencies of
as a person who, by his information to tell it. "News"
accomplishments, fame, or mode includes all events and items of
of living, or by adopting a information which are out of the
profession or calling which gives ordinary hum-drum routine, and
the public a legitimate interest in which have 'that indefinable
his doings, his affairs, and his quality of information which
character, has become a 'public arouses public attention.' To a
personage.' He is, in other words, very great extent the press, with
a celebrity. Obviously to be its experience or instinct as to
included in this category are what its readers will want, has
those who have achieved some succeeded in making its own
degree of reputation by definination of news, as a glance
appearing before the public, as in at any morning newspaper will
the case of an actor, a sufficiently indicate. It includes
professional baseball player, a homicide and othe crimes, arrests
pugilist, or any other and police raides, suicides,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
marriages and divorces,
accidents, a death from the use
of narcotics, a woman with a rare
disease, the birth of a child to a
twelve year old girl, the
reappearance of one supposed to
have been murdered years ago,
and undoubtedly many other
similar matters of genuine, if
more or less deplorable, popular
appeal.
The privilege of enlightening the
public was not, however, limited,
to the dissemination of news in
the scene of current events. It
extended also to information or
education, or even entertainment
and amusement, by books,
articles, pictures, films and
broadcasts concerning
interesting phases of human
activity in general, as well as the
reproduction of the public scene
in newsreels and travelogues. In
determining where to draw the
line, the courts were invited to
exercise a species of censorship
over what the public may be
permitted to read; and they were
understandably liberal in allowing
the benefit of the doubt. 15
Private respondent is a "public figure" precisely
because, inter alia, of his participation as a
principal actor in the culminating events of the
change of government in February 1986.
Because his participation therein was major in
character, a film reenactment of the peaceful
revolution that fails to make reference to the
role played by private respondent would be
grossly unhistorical. The right of privacy of a
"public figure" is necessarily narrower than that
of an ordinary citizen. Private respondent has
not retired into the seclusion of simple private
citizenship. he continues to be a "public figure."
After a successful political campaign during
which his participation in the EDSA Revolution
was directly or indirectly referred to in the
press, radio and television, he sits in a very
public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context
of the instant case between the constitutional
freedom of speech and of expression and the
right of privacy, may be marked out in terms of
a requirement that the proposed motion picture
must be fairly truthful and historical in its
presentation of events. There must, in other
words, be no knowing or reckless disregard of
truth in depicting the participation of private
respondent in the EDSA Revolution. 16 There
must, further, be no presentation of the private
life of the unwilling private respondent and
certainly no revelation of intimate or
embarrassing personal facts. 17 The proposed
motion picture should not enter into what Mme.
Justice Melencio-Herrera in Lagunzad referred
to as "matters of essentially private concern."
18 To the extent that "The Four Day
Revolution" limits itself in portraying the
participation of private respondent in the EDSA
Revolution to those events which are directly
and reasonably related to the public facts of the
EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as
unreasonable and actionable. Such portrayal
may be carried out even without a license from
private respondent.
II
In a Manifestation dated 30 March 1988,
petitioner Hal McElroy informed this Court that
a Temporary Restraining Order dated 25
March 1988, was issued by Judge Teofilo
Guadiz of the Regional Trial Court of Makati,
Branch 147, in Civil Case No. 88-413, entitled
"Gregorio B. Honasan vs. Ayer Productions
Pty. Ltd., McElroy Film Productions, Hal
McElroy, Lope Juban and PMP Motion for
Pictures Production" enjoining him and his
production company from further filimg any
scene of the projected mini-series film.
Petitioner alleged that Honasan's complaint
was a "scissors and paste" pleading, cut out
straight grom the complaint of private
respondent Ponce Enrile in Civil Case No. 88-
151. Petitioner Ayer Productions, in a separate
Manifestation dated 4 April 1988, brought to
the attention of the Court the same information
given by petitoner Hal McElroy, reiterating that
the complaint of Gregorio B. Honasan was
substantially identical to that filed by private
respondent herein and stating that in refusing
to join Honasan in Civil Case No. 88-151,
counsel for private respondent, with whom
counsel for Gregorio Honasan are apparently
associated, deliberately engaged in "forum
shopping."
Private respondent filed a Counter-
Manifestation on 13 April 1988 stating that the
"slight similarity" between private respondent's
complaint and that on Honasan in the
construction of their legal basis of the right to
privacy as a component of the cause of action
is understandable considering that court
pleadings are public records; that private
respondent's cause of action for invasion of
privacy is separate and distinct from that of
Honasan's although they arose from the same
 HUMAN RIGHTS PRELIMFULLTEXT CASES
tortious act of petitioners' that the rule on vs.
permissive joinder of parties is not mandatory FELICIANO BELMONTE, JR., respondent.
and that, the cited cases on "forum shopping"
were not in point because the parties here and Ricardo C. Valmonte for and in his own behalf
those in Civil Case No. 88-413 are not and his co-petitioners.
identical.
The Solicitor General for respondent.
For reasons that by now have become clear, it
is not necessary for the Court to deal with the
question of whether or not the lawyers of
private respondent Ponce Enrile have engaged CORTES, J.:
in "forum shopping." It is, however, important to
dispose to the complaint filed by former Petitioners in this special civil action for
Colonel Honasan who, having refused to mandamus with preliminary injunction invoke
subject himself to the legal processes of the their right to information and pray that
Republic and having become once again in respondent be directed:
fugitive from justice, must be deemed to have
forfeited any right the might have had to protect  
his privacy through court processes.
(a) to furnish
WHEREFORE, petitioners the list of
the names of the
a) the Petitions for Certiorari are GRANTED Batasang
DUE COURSE, and the Order dated 16 March Pambansa
1988 of respondent trial court granting a Writ of members belonging
Preliminary Injunction is hereby SET ASIDE. to the UNIDO and
The limited Temporary Restraining Order PDP-Laban who
granted by this Court on 24 March 1988 is were able to secure
hereby MODIFIED by enjoining unqualifiedly clean loans
the implementation of respondent Judge's immediately before
Order of 16 March 1988 and made the February 7
PERMANENT, and election thru the
intercession/margin
b) Treating the Manifestations of petitioners al note of the then
dated 30 March 1988 and 4 April 1988 as First Lady Imelda
separate Petitions for Certiorari with Prayer for Marcos; and/or
Preliminary Injunction or Restraining Order, the
Court, in the exercise of its plenary and (b) to furnish
supervisory jurisdiction, hereby REQUIRES petitioners with
Judge Teofilo Guadiz of the Regional Trial certified true copies
Court of Makati, Branch 147, forthwith to of the documents
DISMISS Civil Case No. 88-413 and evidencing their
accordingly to SET ASIDE and DISSOLVE his respective loans;
Temporary Restraining Order dated 25 March and/or
1988 and any Preliminary Injunction that may
have been issued by him. (c) to allow
petitioners access
No pronouncement as to costs. to the public records
for the subject
SO ORDERED. information.
(Petition, pp. 4-5;
G.R. No. 74930 February 13, 1989 paragraphing
supplied.]
RICARDO VALMONTE, OSWALDO
CARBONELL, DOY DEL CASTILLO, The controversy arose when petitioner
ROLANDO BARTOLOME, LEO OBLIGAR, Valmonte wrote respondent Belmonte the
JUN GUTIERREZ, REYNALDO BAGATSING, following letter:
JUN "NINOY" ALBA, PERCY LAPID,
ROMMEL CORRO and ROLANDO June 4, 1986
FADUL, petitioners,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the
media and plain citizen of our
Republic, I am requesting that I
be furnished with the list of
names of the opposition
members of (the) Batasang
Pambansa who were able to
secure a clean loan of P2 million
each on guarranty (sic) of Mrs.
Imelda Marcos. We understand
that OIC Mel Lopez of Manila was
one of those aforesaid MPs.
Likewise, may we be furnished
with the certified true copies of
the documents evidencing their
loan. Expenses in connection
herewith shall be borne by us.
To the aforesaid letter, the Deputy General
Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compañero:
Possibly because he must have
thought that it contained serious
legal implications, President &
General Manager Feliciano
Belmonte, Jr. referred to me for
study and reply your letter to him
of June 4, 1986 requesting a list
of the opposition members of
Batasang Pambansa who were
able to secure a clean loan of P2
million each on guaranty of Mrs.
Imelda Marcos.

If we could not secure the above My opinion in this regard is that a

documents could we have access confidential relationship exists
to them? between the GSIS and all those
who borrow from it, whoever they
We are premising the above may be; that the GSIS has a duty
request on the following provision to its customers to preserve this
of the Freedom Constitution of confidentiality; and that it would
the present regime. not be proper for the GSIS to
breach this confidentiality unless
The right of the so ordered by the courts.
people to
information on As a violation of this
matters of public confidentiality may mar the image
concern shall be of the GSIS as a reputable
recognized. Access financial institution, I regret very
to official records, much that at this time we cannot
and to documents respond positively to your
and papers request.
pertaining to official
acts, transactions or Very truly yours,
decisions, shall be
afforded the citizen (Sgd.) MEYNARDO A. TIRO
subject to such Deputy General Counsel
limitation as may be [Rollo, p. 40.]
provided by law.
(Art. IV, Sec. 6). On June 20, 1986, apparently not having yet
received the reply of the Government Service
We trust that within five (5) days and Insurance System (GSIS) Deputy General
from receipt hereof we will Counsel, petitioner Valmonte wrote respondent
receive your favorable response another letter, saying that for failure to receive
on the matter. a reply, "(W)e are now considering ourselves
free to do whatever action necessary within the
Very truly yours, to pursue our desired objective in
premises
pursuance of public interest." [Rollo, p. 8.]
(Sgd.) RICARDO C. VALMONTE
On June 26, 1986, Valmonte, joined by the
[Rollo, p. 7.] other petitioners, filed the instant suit.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
On July 19, 1986, the Daily Express carried a
news item reporting that 137 former members
of the defunct interim and regular Batasang
Pambansa, including ten (10) opposition
members, were granted housing loans by the
GSIS [Rollo, p. 41.]
Separate comments were filed by respondent
Belmonte and the Solicitor General. After
petitioners filed a consolidated reply, the
petition was given due course and the parties
were required to file their memoranda. The
parties having complied, the case was deemed
submitted for decision.
In his comment respondent raises procedural
objections to the issuance of a writ of
mandamus, among which is that petitioners
have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS
General Manager are reviewable by the Board
of Trustees of the GSIS. Petitioners, however,
did not seek relief from the GSIS Board of
Trustees. It is therefore asserted that since
administrative remedies were not exhausted,
then petitioners have no cause of action.
To this objection, petitioners claim that they
have raised a purely legal issue, viz., whether
or not they are entitled to the documents
sought, by virtue of their constitutional right to
information. Hence, it is argued that this case
falls under one of the exceptions to the
principle of exhaustion of administrative
remedies.
Among the settled principles in administrative
law is that before a party can be allowed to
resort to the courts, he is expected to have
exhausted all means of administrative redress
available under the law. The courts for reasons
of law, comity and convenience will not
entertain a case unless the available
administrative remedies have been resorted to
and the appropriate authorities have been
given opportunity to act and correct the errors
committed in the administrative forum.
However, the principle of exhaustion of
administrative remedies is subject to settled
exceptions, among which is when only a
question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar
v. Valencia, et al., G.R. No. L-30396, July 30,
1971, 40 SCRA 210; Malabanan v. Ramento,
G.R. No. L-2270, May 21, 1984, 129 SCRA
359.] The issue raised by petitioners, which
requires the interpretation of the scope of the
constitutional right to information, is one which
can be passed upon by the regular courts more
competently than the GSIS or its Board of
Trustees, involving as it does a purely legal
question. Thus, the exception of this case from
the application of the general rule on
exhaustion of administrative remedies is
warranted. Having disposed of this procedural
issue, We now address ourselves to the issue
of whether or not mandamus hes to compel
respondent to perform the acts sought by
petitioners to be done, in pursuance of their
right to information.
We shall deal first with the second and third
alternative acts sought to be done, both of
which involve the issue of whether or not
petitioners are entitled to access to the
documents evidencing loans granted by the
GSIS.
This is not the first time that the Court is
confronted with a controversy directly involving
the constitutional right to information.
In Tañada v. Tuvera, G.R. No. 63915, April
24,1985, 136 SCRA 27 and in the recent case
of Legaspi v. Civil Service Commission, G.R.
No. 72119, May 29, 1987,150 SCRA 530, the
Court upheld the people's constitutional right to
be informed of matters of public interest and
ordered the government agencies concerned to
act as prayed for by the petitioners.
The pertinent provision under the 1987
Constitution is Art. 111, Sec. 7 which states:
The right of the people to
information on matters of public
concern shall be recognized.
Access to official records, and to
documents, and papers
pertaining to official acts,
transactions, or decisions, as well
as to government research data
used as basis for policy
development, shall be afforded
the citizen, subject to such
limitations as may be provided by
law.
The right of access to information was also
recognized in the 1973 Constitution, Art. IV
Sec. 6 of which provided:
The right of the people to
information on 'matters of public
concern shall be recognized.
Access to official records, and to
documents and papers pertaining
to official acts, transactions, or
decisions, shall be afforded the
citizen subject to such limitations
as may be provided by law.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
An informed citizenry with access to the
diverse currents in political, moral and artistic
thought and data relative to them, and the free
exchange of ideas and discussion of issues
thereon, is vital to the democratic government
envisioned under our Constitution. The
cornerstone of this republican system of
government is delegation of power by the
people to the State. In this system,
governmental agencies and institutions operate
within the limits of the authority conferred by
the people. Denied access to information on
the inner workings of government, the citizenry
can become prey to the whims and caprices of
those to whom the power had been delegated.
The postulate of public office as a public trust,
institutionalized in the Constitution (in Art. XI,
Sec. 1) to protect the people from abuse of
governmental power, would certainly be were
empty words if access to such information of
public concern is denied, except under
limitations prescribed by implementing
legislation adopted pursuant to the
Constitution.
Petitioners are practitioners in media. As such,
they have both the right to gather and the
obligation to check the accuracy of information
the disseminate. For them, the freedom of the
press and of speech is not only critical, but vital
to the exercise of their professions. The right of
access to information ensures that these
freedoms are not rendered nugatory by the
government's monopolizing pertinent
information. For an essential element of these
freedoms is to keep open a continuing dialogue
or process of communication between the
government and the people. It is in the interest
of the State that the channels for free political
discussion be maintained to the end that the
government may perceive and be responsive
to the people's will. Yet, this open dialogue can
be effective only to the extent that the citizenry
is informed and thus able to formulate its will
intelligently. Only when the participants in the
discussion are aware of the issues and have
access to information relating thereto can such
bear fruit.
The right to information is an essential premise
of a meaningful right to speech and expression.
But this is not to say that the right to
information is merely an adjunct of and
therefore restricted in application by the
exercise of the freedoms of speech and of the
press. Far from it. The right to information goes
hand-in-hand with the constitutional policies
of full public disclosure * and honesty in the
public service. ** It is meant to enhance the
widening role of the citizenry in governmental
decision-making as well as in checking abuse
in government.
Yet, like all the constitutional guarantees, the
right to information is not absolute. As stated
in Legaspi, the people's right to information is
limited to "matters of public concern," and is
further "subject to such limitations as may be
provided by law." Similarly, the State's policy of
full disclosure is limited to "transactions
involving public interest," and is "subject to
reasonable conditions prescribed by law."
Hence, before mandamus may issue, it must
be clear that the information sought is of
"public interest" or "public concern," and is not
exempted by law from the operation of the
constitutional guarantee [Legazpi v. Civil
Service Commission, supra, at p. 542.]
The Court has always grappled with the
meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
In determining whether or not a
particular information is of public
concern there is no rigid test
which can be applied. "Public
concern" like "public interest" is a
term that eludes exact definition.
Both terms embrace a broad
spectrum of subjects which the
public may want to know, either
because these directly affect their
lives, or simply because such
matters naturally arouse the
interest of an ordinary citezen. In
the final analysis, it is for the
courts to determine on a case by
case basis whether the matter at
issue is of interest or importance,
as it relates to or affects the
public. [Ibid. at p. 541]
In the Tañada case the public concern deemed
covered by the constitutional right to
information was the need for adequate notice
to the public of the various laws which are to
regulate the actions and conduct of citezens.
In Legaspi, it was the "legitimate concern of
citezensof ensure that government positions
requiring civil service eligibility are occupied
only by persons who are eligibles" [Supra at p.
539.]
The information sought by petitioners in this
case is the truth of reports that certain
Members of the Batasang Pambansa
belonging to the opposition were able to secure
"clean" loans from the GSIS immediately
before the February 7, 1986 election through
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the intercession of th eformer First Lady, Mrs.
Imelda Marcos.
The GSIS is a trustee of contributions from the
government and its employees and the
administrator of various insurance programs for
the benefit of the latter. Undeniably, its funds
assume a public character. More particularly,
Secs. 5(b) and 46 of P.D. 1146, as amended
(the Revised Government Service Insurance
Act of 1977), provide for annual appropriations
to pay the contributions, premiums, interest
and other amounts payable to GSIS by the
government, as employer, as well as the
obligations which the Republic of the
Philippines assumes or guarantees to pay.
Considering the nature of its funds, the GSIS is
expected to manage its resources with utmost
prudence and in strict compliance with the
pertinent laws or rules and regulations. Thus,
one of the reasons that prompted the revision
of the old GSIS law (C.A. No. 186, as
amended) was the necessity "to preserve at all
times the actuarial solvency of the funds
administered by the System" [Second Whereas
Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not
supposed to grant 'clean loans.'" [Comment, p.
8.] It is therefore the legitimate concern of the
public to ensure that these funds are managed
properly with the end in view of maximizing the
benefits that accrue to the insured government
employees. Moreover, the supposed borrowers
were Members of the defunct Batasang
Pambansa who themselves appropriated funds
for the GSIS and were therefore expected to be
the first to see to it that the GSIS performed its
tasks with the greatest degree of fidelity and
that an its transactions were above board.
In sum, the public nature of the loanable funds
of the GSIS and the public office held by the
alleged borrowers make the information sought
clearly a matter of public interest and concern.
A second requisite must be met before the right
to information may be enforced through
mandamus proceedings, viz., that the
information sought must not be among those
excluded by law.
Respondent maintains that a confidential
relationship exists between the GSIS and its
borrowers. It is argued that a policy of
confidentiality restricts the indiscriminate
dissemination of information.
Yet, respondent has failed to cite any law
granting the GSIS the privilege of
confidentiality as regards the documents
subject of this petition. His position is
apparently based merely on considerations of
policy. The judiciary does not settle policy
issues. The Court can only declare what the
law is, and not what the law should be. Under
our system of government, policy issues are
within the domain of the political branches of
the government, and of the people themselves
as the repository of all State power.
Respondent however contends that in view of
the right to privacy which is equally protected
by the Constitution and by existing laws, the
documents evidencing loan transactions of the
GSIS must be deemed outside the ambit of the
right to information.
There can be no doubt that right to privacy is
constitutionally protected. In the landmark case
of Morfe v. Mutuc [130 Phil. 415 (1968), 22
SCRA 424], this Court, speaking through then
Mr. Justice Fernando, stated:
... The right to privacy as such is
accorded recognition
independently of its identification
with liberty; in itself, it is fully
deserving of constitutional
protection. The language of Prof.
Emerson is particularly apt: "The
concept of limited government
has always included the idea that
governmental powers stop short
of certain intrusions into the
personal life of the citizen. This is
indeed one of the basic
distinctions between absolute and
limited government. UItimate and
pervasive control of the
individual, in all aspects of his life,
is the hallmark of the absolute.
state, In contrast, a system of
limited government safeguards a
private sector, which belongs to
the individual, firmly
distinguishing it from the public
sector, which the state can
control. Protection of this private
sector — protection, in other
words, of the dignity and integrity
of the individual — has become
increasingly important as modem
society has developed. All the
forces of technological age —
industrialization, urbanization,
and organization — operate to
narrow the area of privacy and
facilitate intrusion into it. In
modern terms, the capacity to
maintain and support this enclave
of private life marks the difference
between a democratic and a
 HUMAN RIGHTS PRELIMFULLTEXT CASES
totalitarian society." [at pp. 444-
445.]
When the information requested from the
government intrudes into the privacy of a
citizen, a potential conflict between the rights to
information and to privacy may arise. However,
the competing interests of these rights need
not be resolved in this case. Apparent from the
above-quoted statement of the Court
in Morfe is that the right to privacy belongs to
the individual in his private capacity, and not to
public and governmental agencies like the
GSIS. Moreover, the right cannot be invoked
by juridical entities like the GSIS. As held in the
case of Vassar College v. Loose Wills Biscuit
Co. [197 F. 982 (1912)], a corporation has no
right of privacy in its name since the entire
basis of the right to privacy is an injury to the
feelings and sensibilities of the party and a
corporation would have no such ground for
relief.
Neither can the GSIS through its General
Manager, the respondent, invoke the right to
privacy of its borrowers. The right is purely
personal in nature [Cf. Atkinson v. John
Doherty & Co., 121 Mich 372, 80 N.W. 285, 46
L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y.
434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and
hence may be invoked only by the person
whose privacy is claimed to be violated.
It may be observed, however, that in the instant
case, the concerned borrowers themselves
may not succeed if they choose to invoke their
right to privacy, considering the public offices
they were holding at the time the loans were
alleged to have been granted. It cannot be
denied that because of the interest they
generate and their newsworthiness, public
figures, most especially those holding
responsible positions in government, enjoy a
more limited right to privacy as compared to
ordinary individuals, their actions being subject
to closer public scrutiny [Cf. Ayer Productions
Pty. Ltd. v. Capulong, G.R. Nos. 82380 and
82398, April 29, 1988; See also Cohen v. Marx,
211 P. 2d 321 (1949).]
Respondent next asserts that the documents
evidencing the loan transactions of the GSIS
are private in nature and hence, are not
covered by the Constitutional right to
information on matters of public concern which
guarantees "(a)ccess to official records, and to
documents, and papers pertaining
to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a
government corporation performing proprietary
functions, are outside the coverage of the
people's right of access to official records.
It is further contended that since the loan
function of the GSIS is merely incidental to its
insurance function, then its loan transactions
are not covered by the constitutional policy of
full public disclosure and the right to
information which is applicable only to "official"
transactions.
First of all, the "constituent — ministrant"
dichotomy characterizing government function
has long been repudiated. In ACCFA v.
Confederation of Unions and Government
Corporations and Offices (G.R. Nos. L-21484
and L-23605, November 29, 1969, 30 SCRA
6441, the Court said that the government,
whether carrying out its sovereign attributes or
running some business, discharges the same
function of service to the people.
Consequently, that the GSIS, in granting the
loans, was exercising a proprietary function
would not justify the exclusion of the
transactions from the coverage and scope of
the right to information.
Moreover, the intent of the members of the
Constitutional Commission of 1986, to include
government-owned and controlled corporations
and transactions entered into by them within
the coverage of the State policy of fun public
disclosure is manifest from the records of the
proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr.
Colayco).
Commissioner
Suarez is
recognized.
MR. SUAREZ. Thank you. May I
ask the Gentleman a few
question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a
"policy of full public
disclosure of all its
transactions" —
referring to the
transactions of the
State — and when
we say the "State"
 HUMAN RIGHTS PRELIMFULLTEXT CASES
which I suppose does
would include all of he
the various refer
agencies, to the
departments, contra
ministries and ct
instrumentalities of itself?
the government....
MR.
MR. OPLE. Yes, and individual OPLE. 
public officers, Mr. Presiding The
Officer. "trans
action
MR. SUAREZ. Including s"
government-owned and used
controlled corporations. here I
suppo
MR. OPLE. That is correct, Mr. se is
Presiding Officer. generi
c and,
MR. theref
SUAR ore, it
EZ. can
And cover
when both
we steps
say leadin
"trans g to a
action contra
s" ct,
which and
should alread
be y a
disting consu
uished mmat
from ed
contra contra
cts, ct, Mr.
agree Presid
ments, ing
or Office
treatie r.
s or
whate MR.
ver, SUAR
does EZ.
the This
Gentle conte
man mplate
refer s
to the inclusi
steps on of
leadin negoti
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the leadin
consu g to
mmati the
on of consu
the mmati
contra on of
ct, or the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
transa of the custodian of the records may be
ction. prevented and that the right of other persons
entitled to inspect the records may be insured
MR. [Legaspi v. Civil Service Commission, supra at
OPLE. p. 538, quoting Subido v. Ozaeta, 80 Phil. 383,
Yes, 387.] The petition, as to the second and third
subjec alternative acts sought to be done by
t only petitioners, is meritorious.
to
reaso However, the same cannot be said with regard
nable to the first act sought by petitioners, i.e., "to
safegu furnish petitioners the list of the names of the
ards Batasang Pambansa members belonging to
on the the UNIDO and PDP-Laban who were able to
nation secure clean loans immediately before the
al February 7 election thru the
interes intercession/marginal note of the then First
t. Lady Imelda Marcos."

MR. Although citizens are afforded the right to

SUAR information and, pursuant thereto, are entitled
EZ. to "access to official records," the Constitution
Thank does not accord them a right to compel
you. custodians of official records to prepare lists,
[V abstracts, summaries and the like in their
Recor desire to acquire information on matters of
d of public concern.
the
Consti It must be stressed that it is essential for a writ
tutiona of mandamus to issue that the applicant has a
l well-defined, clear and certain legal right to the
Comm thing demanded and that it is the imperative
ission duty of defendant to perform the act required.
24- The corresponding duty of the respondent to
25.] perform the required act must be clear and
(Emph specific [Lemi v. Valencia, G.R. No. L-20768,
asis November 29,1968,126 SCRA 203; Ocampo v.
suppli Subido, G.R. No. L-28344, August 27, 1976, 72
ed.) SCRA 443.] The request of the petitioners fails
to meet this standard, there being no duty on
Considering the intent of the framers of the the part of respondent to prepare the list
Constitution which, though not binding upon requested.
the Court, are nevertheless persuasive, and
considering further that government-owned and WHEREFORE, the instant petition is hereby
controlled corporations, whether performing granted and respondent General Manager of
proprietary or governmental functions are the Government Service Insurance System is
accountable to the people, the Court is ORDERED to allow petitioners access to
convinced that transactions entered into by the documents and records evidencing loans
GSIS, a government-controlled corporation granted to Members of the former Batasang
created by special legislation are within the Pambansa, as petitioners may specify, subject
ambit of the people's right to be informed to reasonable regulations as to the time and
pursuant to the constitutional policy of manner of inspection, not incompatible with this
transparency in government dealings. decision, as the GSIS may deem necessary.

In fine, petitioners are entitled to access to the SO ORDERED.

documents evidencing loans granted by the
GSIS, subject to reasonable regulations that
the latter may promulgate relating to the
manner and hours of examination, to the end
that damage to or loss of the records may be
avoided, that undue interference with the duties
Fernan, C.J., Narvasa, Melencio-Herrera,
Gutierrez, Jr., Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
 
 
Separate Opinions
 
CRUZ, J., concurring:
Instead of merely affixing my signature to
signify my concurrence, I write this separate
opinion simply to say I have nothing to add to
Justice Irene R. Cortes' exceptionally eloquent
celebration of the right to information on
matters of public concern.
 
 
Separate Opinions
CRUZ, J., concurring:
Instead of merely affixing my signature to
signify my concurrence, I write this separate
opinion simply to say I have nothing to add to
Justice Irene R. Cortes' exceptionally eloquent
celebration of the right to information on
matters of public concern.
Footnotes
* Art. II, Sec. 28. Subject to
reasonable conditions prescribed
by law, the State adopts and
implements a policy of full public
disclosure of all its transactions
involving public interest.
** Art XI, Sec. 1. Public office is a
public trust. Public officers and
employees must at all times be
accountable to the people, serve
them with utmost responsibility,
integrity, loyalty, and efficiency,
act with partriotism and justice,
and lead modest lives.
The following provisions of the
1987 Constitution are further
indicative of the policy of
transparency:
Art. VII, Sec. 12. In case of
serious illness of the
President, the public shall be
informed of the state of his
health. The members of the
cabinet in charge of national
security and foreign relations and
the Chief of Staff of the Armed
Forces of the Philippines shall not
be denied access to the
President during such illness.
Art. XI, Sec. 17. A public officer or
employee shall, upon assumption
of office and as often thereafter
as may be required by law,
submit a declaration under oath
or his assets liabilities, and net
worth. In the case of the
President, the Vice-President, the
Members of the Cabinet, the
Congress, the Supreme Court,
the Constitutional Commissions
and other constitutional offices,
and officers of the armed forces
with general or flag rank, the
declaration shall be disclosed to
the public in the manner provided
by law.
Art. XII, Sec. 21. Foreign loans
may only be incurred in
accordance with law and the
regulation of the monetary
authority. Information on foreign
loans obtained or guaranteed by
the Government shall be made
available to the public.
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-
BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City
of Manila, respondent.
Lorenzo M. Tañada Jose W. Diokno and
Haydee B. Yorac for petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
This Court, in this case of first impression, at
least as to some aspects, is called upon to
delineate the boundaries of the protected area
of the cognate rights to free speech and
peaceable assembly, 1 against an alleged
intrusion by respondent Mayor Ramon
Bagatsing. Petitioner, retired Justice JB L.
Reyes, on behalf of the Anti-Bases Coalition
sought a permit from the City of Manila to hold
a peaceful march and rally on October 26,
1983 from 2:00 to 5:00 in the afternoon,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
starting from the Luneta, a public park, to the
gates of the United States Embassy, hardly two
blocks away. Once there, and in an open
space of public property, a short program
would be held. 2 During the course of the oral
argument, 3 it was stated that after the delivery
of two brief speeches, a petition based on the
resolution adopted on the last day by the
International Conference for General
Disbarmament, World Peace and the Removal
of All Foreign Military Bases held in Manila,
would be presented to a representative of the
Embassy or any of its personnel who may be
there so that it may be delivered to the United
States Ambassador. The march would be
attended by the local and foreign participants of
such conference. There was likewise an
assurance in the petition that in the exercise of
the constitutional rights to free speech and
assembly, all the necessary steps would be
taken by it "to ensure a peaceful march and
rally." 4
The filing of this suit for mandamus with
alternative prayer for writ of preliminary
mandatory injunction on October 20, 1983 was
due to the fact that as of that date, petitioner
had not been informed of any action taken on
his request on behalf of the organization to
hold a rally. On October 25, 1983, the answer
of respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G.
Montenegro. 5 It turned out that on October 19,
such permit was denied. Petitioner was
unaware of such a fact as the denial was sent
by ordinary mail. The reason for refusing a
permit was due to police intelligence reports
which strongly militate against the advisability
of issuing such permit at this time and at the
place applied for." 6 To be more specific,
reference was made to persistent intelligence
reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or
disrupt any assembly or congregations where a
large number of people is expected to
attend." 7 Respondent Mayor suggested,
however, in accordance with the
recommendation of the police authorities, that
"a permit may be issued for the rally if it is to be
held at the Rizal Coliseum or any other
enclosed area where the safety of the
participants themselves and the general public
may be ensured." 8
The oral argument was heard on October 25,
1983, the very same day the answer was filed.
The Court then deliberated on the matter. That
same afternoon, a minute resolution was
issued by the Court granting the mandatory
injunction prayed for on the ground that there
was no showing of the existence of a clear and
present danger of a substantive evil that could
justify the denial of a permit. On this point, the
Court was unanimous, but there was a dissent
by Justice Aquino on the ground that the
holding of a rally in front of the US Embassy
would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such
minute resolution reads: "This resolution is
without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the
Court's stand on the matter.
1. It is thus clear that the Court is called upon
to protect the exercise of the cognate rights to
free speech and peaceful assembly, arising
from the denial of a permit. The Constitution is
quite explicit: "No law shall be passed
abridging the freedom of speech, or of the
press, or the right of the people peaceably to
assemble and petition the Government for
redress of grievances." 10 Free speech, like free
press, may be Identified with the liberty to
discuss publicly and truthfully any matter of
public concern without censorship or
punishment. 11 There is to be then no previous
restraint on the communication of views or
subsequent liability whether in libel
12 13
suits,   prosecution for sedition,   or action for
damages, 14 or contempt proceedings 15 unless
there be a clear and present danger of a
substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the
right people to meet peaceably for consultation
and discussion of matters Of public
concern.17 It is entitled to be accorded the
utmost deference and respect. It is hot to be
limited, much less denied, except on a
showing, as 's the case with freedom of
expression, of a clear and present danger of a
substantive evil that the state has a right to
prevent. 18 Even prior to the 1935 Constitution,
Justice Maicolm had occasion to stress that it
is a necessary consequence of our republican
institutions and complements the right of free
speech. 19 To paraphrase opinion of Justice
Rutledge speaking for the majority of
the American Supreme Court Thomas v.
Collins, 20 it was not by accident or coincidence
that the right to freedom of speech and of the
press were toupled in a single guarantee with
the and to petition the rights of the people
peaceably to assemble and to petition the
government for redress of grievances. All these
rights, while not Identical, are inseparable. the
every case, therefo re there is a limitation
placed on the exercise of this right, the
judiciary is called upon to examine the effects
of the challenged governmental actuation. The
sole justification for a limitation on the exercise
of this right, so fundamental to the
maintenance of democratic institutions, is the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
danger, of a character both grave and
imminent, of a serious evil to public safety,
public morals, public health, or any other
legitimate public interest. 21
2. Nowhere is the rationale that underlies the
freedom of expression and peaceable
assembly better expressed than in this excerpt
from an opinion of Justice Frankfurter: "It must
never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in
the power of an appeal to reason by all the
peaceful means for gaining access to the mind.
It was in order to avert force and explosions
due to restrictions upon rational modes of
communication that the guaranty of free
speech was given a generous scope. But
utterance in a context of violence can lose its
significance as an appeal to reason and
become part of an instrument of force. Such
utterance was not meant to be sheltered by the
Constitution." 22 What was rightfully stressed is
the abandonment of reason, the utterance,
whether verbal or printed, being in a context of
violence. It must always be remembered that
this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to
their-views, even if contrary to the prevailing
climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to
non-peaceful means may be the only
alternative. Nor is this the sole reason for the
expression of dissent. It means more than just
the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as
they are. Its value may lie in the fact that there
may be something worth hearing from the
dissenter. That is to ensure a true ferment of
Ideas. There are, of course, well-defined limits.
What is guaranteed is peaceable assembly.
One may not advocate disorder in the name of
protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or
assembly. resort to force is ruled out and
outbreaks of violence to be avoided. The
utmost calm though is not required. As pointed
out in an early Philippine case, penned in 1907
to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less
disorder will mark the public assembly of the
people to protest against grievances whether
real or imaginary, because on such occasions
feeling is always wrought to a high pitch of
excitement, and the greater the grievance and
the more intense the feeling, the less perfect,
as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." 24 It
bears repeating that for the constitutional right
to be invoked, riotous conduct, injury to
property, and acts of vandalism must be
avoided, To give free rein to one's destructive
urges is to call for condemnation. It is to make
a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the
existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the
place where the peace rally would start. The
Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of
Justice Roberts in Hague v. CIO: 25 Whenever
the title of streets and parks may rest, they
have immemorially been held in trust for the
use of the public and, time out of mind, have
been used for purposes of assembly,
communicating thoughts between citizens, and
discussing public questions. Such use of the
streets and public places has, from ancient
times, been a part of the privileges, immunities,
rights, and liberties of citizens. The privilege of
a citizen of the United States to use the streets
and parks for communication of views on
national questions may be regulated in the
interest of all; it is not absolute, but relative,
and must be exercised in subordination to the
general comfort and convenience, and in
consonance with peace and good order; but it
must not, in the guise of regulation, be
abridged or denied. 26 The above excerpt was
quoted with approval in Primicias v.
Fugoso. 27 Primicias made explicit what was
implicit in Municipality of Cavite v. Rojas," 28 a
1915 decision, where this Court categorically
affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified
a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to
such plaza "being a promenade for public
use," 29 which certainly is not the only purpose
that it could serve. To repeat, there can be no
valid reason why a permit should not be
granted for the or oposed march and rally
starting from a public dark that is the Luneta.
4. Neither can there be any valid objection to
the use of the streets, to the gates of the US
Embassy, hardly two block-away at the Roxas
Boulevard. Primicias v. Fugoso has resolved
any lurking doubt on the matter. In holding that
the then Mayor Fugoso of the City of Manila
should grant a permit for a public meeting at
Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox
vs. State of New Hampshire, 312 U.S., 569. In
that case, the statute of New Hampshire P. L.
chap. 145, section 2, providing that 'no parade
or procession upon any ground abutting
thereon, shall 'De permitted unless a special
 HUMAN RIGHTS PRELIMFULLTEXT CASES
license therefor shall first be explained from the
selectmen of the town or from licensing
committee,' was construed by the Supreme
Court of New Hampshire as not conferring
upon the licensing board unfettered discretion
to refuse to grant the license, and held valid.
And the Supreme Court of the United States, in
its decision (1941) penned by Chief Justice
Hughes affirming the judgment of the State
Supreme Court, held that 'a statute requiring
persons using the public streets for a parade or
procession to procure a special license therefor
from the local authorities is not an
unconstitutional abridgment of the rights of
assembly or of freedom of speech and press,
where, as the statute is construed by the state
courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a
consideration of the time, place, and manner of
the parade or procession, with a view to
conserving the public convenience and of
affording an opportunity to provide proper
policing, and are not invested with arbitrary
discretion to issue or refuse license, ... " 30 Nor
should the point made by Chief Justice Hughes
in a subsequent portion of the opinion be
ignored, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an
organized society maintaining public order
without which liberty itself would be lost in the
excesses of unrestricted abuses. The authority
of a municipality to impose regulations in order
to assure the safety and convenience of the
people in the use of public highways has never
been regarded as inconsistent with civil
liberties but rather as one of the means of
safeguarding the good order upon which they
ultimately depend. The control of travel on the
streets of cities is the most familiar illustration
of this recognition of social need. Where a
restriction of the use of highways in that
relation is designed to promote the public
convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some
civil right which in other circumstances would
be entitled to protection." 31
5. There is a novel aspect to this case, If the
rally were confined to Luneta, no question, as
noted, would have arisen. So, too, if the march
would end at another park. As previously
mentioned though, there would be a short
program upon reaching the public space
between the two gates of the United States
Embassy at Roxas Boulevard. That would be
followed by the handing over of a petition
based on the resolution adopted at the closing
session of the Anti-Bases Coalition. The
Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in
1961. It was concurred in by the then Philippine
Senate on May 3, 1965 and the instrument of
ratification was signed by the President on
October 11, 1965, and was thereafter
deposited with the Secretary General of the
United Nations on November 15. As of that
date then, it was binding on the Philippines.
The second paragraph of the Article 22 reads:
"2. The receiving State is under a special duty
to take appropriate steps to protect the
premises of the mission against any intrusion
or damage and to prevent any disturbance of
the peace of the mission or impairment of its
dignity. " 32 The Constitution "adopts the
generally accepted principles of international
law as part of the law of the land. ..." 33 To the
extent that the Vienna Convention is a
restatement of the generally accepted
principles of international law, it should be a
part of the law of the land. 34 That being the
case, if there were a clear and present danger
of any intrusion or damage, or disturbance of
the peace of the mission, or impairment of its
dignity, there would be a justification for the
denial of the permit insofar as the terminal
point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No.
7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations
within a radius of five hundred (500) feet from
any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or
declared ultra vires, its invocation as a defense
is understandable but not decisive, in view of
the primacy accorded the constitutional rights
of free speech and peaceable assembly. Even
if shown then to be applicable, that question
the confronts this Court.
6. There is merit to the observation that except
as to the novel aspects of a litigation, the
judgment must be confined within the limits of
previous decisions. The law declared on past
occasions is, on the whole, a safe guide, So it
has been here. Hence, as noted, on the
afternoon of the hearing, October 25, 1983, this
Court issued the minute resolution granting the
mandatory injunction allowing the proposed
march and rally scheduled for the next day.
That conclusion was inevitable ill the absence
of a clear and present danger of a substantive,
evil to a legitimate public interest. There was
no justification then to deny the exercise of the
constitutional rights of tree speech and
peaceable assembly. These rights are assured
by our Constitution and the Universal
Declaration of Human Rights. 35 The
participants to such assembly, composed
primarily of those in attendance at the
International Conference for General
Disbarmament, World Peace and the Removal
of All Foreign Military Bases would start from
 HUMAN RIGHTS PRELIMFULLTEXT CASES
the Luneta. proceeding through Roxas
Boulevard to the gates of the United States
Embassy located at the same street. To repeat,
it is settled law that as to public places,
especially so as to parks and streets, there is
freedom of access. Nor is their use dependent
on who is the applicant for the permit, whether
an individual or a group. If it were, then the
freedom of access becomes discriminatory
access, giving rise to an equal protection
question. The principle under American
doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the
rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices
under which the meeting is held but as to its
purpose; not as to The relations of the
speakers, but whether their utterances
transcend the bounds of the freedom of speech
which the Constitution protects." 36 There could
be danger to public peace and safety if such a
gathering were marked by turbulence. That
would deprive it of its peaceful character. Even
then, only the guilty parties should be held
accountable. It is true that the licensing official,
here respondent Mayor, is not devoid of
discretion in determining whether or not a
permit would be granted. It is not, however,
unfettered discretion. While prudence requires
that there be a realistic appraisal not of what
may possibly occur but of what may probably
occur, given all the relevant circumstances, still
the assumption — especially so where the
assembly is scheduled for a specific public —
place is that the permit must be for the
assembly being held there. The exercise of
such a right, in the language of Justice
Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it
may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on
the belief that Navarro v.
Villegas 38 and Pagkakaisa ng Manggagawang
Pilipino (PMP.) v. Bagatsing,  39 called for
application. While the General rule is that a
permit should recognize the right of the
applicants to hold their assembly at a public
place of their choice, another place may be
designated by the licensing authority if it be
shown that there is a clear and present danger
of a substantive evil if no such change were
made. In the Navarro and the Pagkakaisa
decisions, this Court was persuaded that the
clear and present danger test was satisfied.
The present situation is quite different. Hence
the decision reached by the Court. The mere
assertion that subversives may infiltrate the
ranks of the demonstrators does not suffice.
Not that it should be overlooked. There was in
this case, however, the assurance of General
Narciso Cabrera, Superintendent, Western
Police District, Metropolitan Police Force, that
the police force is in a position to cope with
such emergency should it arise That is to
comply with its duty to extend protection to the
participants of such peaceable assembly. Also
from him came the commendable admission
that there were the least five previous
demonstrations at the Bayview hotel Area and
Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It
was made clear by petitioner, through counsel,
that no act offensive to the dignity of the United
States Mission in the Philippines would take
place and that, as mentioned at the outset of
this opinion, "all the necessary steps would be
taken by it 'to ensure a peaceful march and
rally.' " 40 Assistant Solicitor General
Montenegro expressed the view that the
presence of policemen may in itself be a
provocation. It is a sufficient answer that they
should stay at a discreet distance, but ever
ready and alert to cope with any contingency.
There is no need to repeat what was pointed
out by Chief Justice Hughes in Cox that
precisely, it is the duty of the city authorities to
provide the proper police protection to those
exercising their right to peaceable assembly
and freedom of expression.
8. By way of a summary The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public place
where and the time when it will take place. If it
were a private place, only the consent of the
owner or the one entitled to its legal
possession is required. Such application
should be filed well ahead in time to enable the
public official concerned to appraise whether
there may be valid objections to the grant of
the permit or to its grant but at another public
place. It is an indispensable condition to such
refusal or modification that the clear and
present danger test be the standard for the
decision reached. If he is of the view that there
is such an imminent and grave danger of a
substantive evil, the applicants must be heard
on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper
judicial authority. Free speech and peaceable
assembly, along with the other intellectual
freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly
stressed that on the judiciary, — even more so
than on the other departments — rests the
grave and delicate responsibility of assuring
respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase
can, of course, dispense with what has been so
 HUMAN RIGHTS PRELIMFULLTEXT CASES
felicitiously termed by Justice Holmes "as the
sovereign prerogative of judgment."
Nonetheless, the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do
precedence and primacy. Clearly then, to the
extent that there may be inconsistencies
between this resolution and that of Navarro v.
Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of
October 25, 1983.
9. Respondent Mayor posed the issue of the
applicability of Ordinance No. 7295 of the City
of Manila prohibiting the holding or staging of
rallies or demonstrations within a radius of five
hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be
admitted that it finds support In the previously
quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing,
however, that the distance between the
chancery and the embassy gate is less than
500 feet. Even if it could be shown that such a
condition is satisfied. it does not follow that
respondent Mayor could legally act the way he
did. The validity of his denial of the permit
sought could still be challenged. It could be
argued that a case of unconstitutional
application of such ordinance to the exercise of
the right of peaceable assembly presents itself.
As in this case there was no proof that the
distance is less than 500 feet, the need to pass
on that issue was obviated, Should it come,
then the qualification and observation of
Justices Makasiar and Plana certainly cannot
be summarily brushed aside. The high estate
accorded the rights to free speech and
peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this
character is to set aside the denial or the
modification of the permit sought and order the
respondent official, to grant it. Nonetheless, as
there was urgency in this case, the proposed
march and rally being scheduled for the next
day after the hearing, this Court. in the exercise
of its conceded authority, granted the
mandatory injunction in the resolution of
October 25, 1983. It may be noted that the
peaceful character of the peace march and
rally on October 26 was not marred by any
untoward incident. So it has been in other
assemblies held elsewhere. It is quite
reassuring such that both on the part of the
national government and the citizens, reason
and moderation have prevailed. That is as it
should be.
WHEREFORE, the mandatory injunction
prayed for is granted. No costs.
Concepcion, Jr., Guerrero, Melencio-Herrera,
Escolin, Relova and Gutierrez, , Jr.,JJ., concur.
De Castro, J, is on leave.
 
 
 
Separate Opinions
 
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court
reaffirms the doctrine of Primicias vs.
Fugoso  1 that "the right to freedom of speech
and to peacefully assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
recognized and guaranteed by the
constitutions of democratic countries" and that
the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or
specify the streets or public places where the
parade or procession may pass or the meeting
may be held." The most recent graphic
demonstration of what this great right of
peaceful assembly and petition for redress of
grievances could accomplish was the civil
rights march on Washington twenty years ago
under the late assassinated black leader Martin
Luther King, Jr. (whose birthday has now been
declared an American national holiday) which
subpoenaed the conscience of the nation," and
awakened the conscience of millions of
previously indifferent Americans and eventually
(after many disorders and riots yet to come)
was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits
for peaceable assembly is succintly set forth in
the summary given by the Court Justice in
paragraph 8 of the Court's opinion, with the
injunction that "the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do,
precedence and primacy," The exception of the
clear and present danger rule, which alone
would warrant a limitation of these fundamental
rights, is therein restated in paragraph 1, thus:
"The sole justification for a limitation on the
exercise of this right, so fundamental to the
maintenance of democratic institutions, is the
danger, of a character both grave and
imminent, of a serious evil to public safety,
 HUMAN RIGHTS PRELIMFULLTEXT CASES
public morals, public health, or any other
legitimate public interest. "
It bears emphasis that the burden to show the
existence of grave and imminent danger that
would justify adverse action on the application
lies on the mayor as licensing authority. There
must be objective and convincing, not
subjective or conjectural proof of the existence
of such clear and present danger. As stated in
our Resolution of October 25, 1983, which
granted the mandatory injunction as prayed for,
"It is essential for the validity of a denial of a
permit which amounts to a previous restraint or
censorship that the licensing authority does not
rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify
such a limitation there must be proof of such
weight and sufficiency to satisfy the clear and
present danger test. The possibility that
subversives may infiltrate the ranks of the
demonstrators is not enough." As stated by
Justice Brandeis in his concurring opinion
in Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot
alone justify suppression of free
speech and assembly. Men
feared witches and burned
women. It is the function of
speech to free men from the
bondage of irrational fears. To
justify suppression of free speech
there must be reasonable ground
to fear that serious evil will result
if free speech is practiced. There
must be reasonable ground to
believe that the danger
apprehended is imminent. There
must be reasonable ground to
believe that the evil to be
prevented is a serious one * * *.
Those who won our
independence by revolution were
not cowards. They did not fear
political change. They did not
exalt order at the cost of liberty. *
**
Moreover, even imminent danger
cannot justify resort to prohibition
of these functions essential (for)
effective democracy, unless the
evil apprehended is relatively
serious. Prohibition of free
speech and assembly is a
measure so stringent that it would
be inappropriate as the means for
averting a relatively trivial harm to
a society. * * * The fact that
speech is likely to result in some
violence or in destruction of
property is not enough to justify
its suppression. There must be
the probability of serious injury to
the state. Among freemen the
deterrents ordinarily to be applied
to prevent crimes are education
and punishment for violations of
the law, not abridgment of the
rights of free speech and
assembly. (Emphasis supplied)
The Court's opinion underscores that the
exercise of the right is not to be "abridged on
the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of
the city authorities to provide the proper police
protection to those exercising their right to
peaceable assembly and freedom of
expression," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs.
3
Committee for Industrial Organization   cited in
Fugoso is worth repeating: têñ.£îhqwâ£
* * * Wherever the title of streets
and parks may rest, they have
immemorially been held in trust
for the use of the public and, time
out of mind, have been used for
purposes of assembly,
communicating thoughts between
citizens, and discussing public
questions. Such use of the
streets and public places has,
from ancient times, been a part of
the privileges, immunities, rights,
and liberties of citizens. The
privilege of a citizen * * * to use
the streets and parks for
communication of views on
national questions may be
regulated in the interest of all; it is
not absolute, but relative, and
must be exercised in
subordination to the general
comfort and convenience, and in
consonance with peace and good
order; but it must not, in the guise
of regulation, be abridged or
denied.
We think the court below was
right in holding the ordinance
quoted in Note I void upon its
face. It does not make comfort or
convenience in the use of streets
or parks the standard of official
action. It enables the Director of
Safety to refuse a permit on his
mere opinion that such refusal
 HUMAN RIGHTS PRELIMFULLTEXT CASES
will prevent 'riots, disturbances or
disorderly assemblage. It can
thus, as the record discloses, be
made the instrument of arbitrary
suppression of free expression of
views on national affairs for the
prohibition of all speaking will
undoubtedly 'prevent' such
eventualities. But uncontrolled
official suppression of the
privilege cannot be made a
substitute for the duty to maintain
order in connection with the
exercise of the right. (Emphasis
supplied)
Needless to say, the leaders of the peaceable
assembly should take all the necessary
measures to ensure a peaceful march and
assembly and to avoid the possibility of
infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the
police to extend protection to the participants
"staying at a discreet distance, but ever ready
and alert to perform their duty." But should any
disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former
Chief Justice Ricardo Paras' injunction in his
concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances
of "disorderly conduct by individual members of
a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and
tumultuous rising against the authorities" and
render illusory the right of peaceable assembly,
thus: têñ.£îhqwâ£
It is rather to be expected that
more or less disorder will mark
the public assembly of the people
to protest against grievances
whether real or imaginary,
because on such occasions
feeling is always wrought to a
high pitch of excitement, and the
greater the grievance and the
more intense the feeling, the less
perfect, as a rule, will the
disciplinary control of the leaders
over their irresponsible
followers. But if the prosecution
be permitted to seize upon every
instance of such disorderly
conduct by individual members of
a crowd as an excuse to
characterize the assembly as a
seditious and tumultous rising
against the authorities, 'then the
right to assemble and to petition
for redress of grievances would
become a delusion and snare
and the attempt to exercise it on
the most righteous occasion and
in the most peaceable manner
would expose all those who took
part therein to the severest and
most unmerited punishment, if
the purposes which they sought
to attain did not happen to be
pleasing to the prosecuting
authorities. If instances of
disorderly conduct occur on such
occasions, the guilty individuals
should be sought out and
punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on
October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the
organizers (like at least five previous peaceful
demonstrations in the area). However, even if
there had been any incidents of disorder, this
would in no way show the Court's mandatory
injunction to have been wrongfully issued. The
salutary desire on the part of respondent to
prevent disorder cannot be pursued by the
unjustified denial and suppression of the
people's basic rights, which would thereby turn
out to be mere paper rights.
 
MAKASIAR, J., concurring:
With the justification that in case of conflict, the
Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna
Convention.
 
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the
Chief Justice is like bringing coal to Newcastle,
I just want to state for the record that I voted for
the issuance ex-parte of a preliminary
mandatory injunction.
 
PLANA, J., concurring:
On the whole, I concur in the learned views of
the distinguished Chief Justice. I would like
however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which
has been invoked by the respondent.
The main opinion yields the implication that a
rally or demonstration made within 500 feet
 HUMAN RIGHTS PRELIMFULLTEXT CASES
from the chancery of a foreign embassy would
be banned for coming within the terms of the
prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a
treaty obligation of the Philippines under the
1961 Vienna Convention on Diplomatic
Relations.
In my view, without saying that the Ordinance
is obnoxious per se to the constitution, it
cannot be validly invoked whenever its
application would collide with a constitutionally
guaranteed right such as freedom of assembly
and/or expression, as in the case at bar,
regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.
AQUINO, J., dissenting:
Voted to dismiss the petition on the ground that
the holding of the rally in front of the US
Embassy violates Ordinance No. 7295 of the
City of Manila.
 
 
Separate Opinions
TEEHANKEE, J., concurring:
The Chief Justice's opinion of the Court
reaffirms the doctrine of Primicias vs.
Fugoso  1 that "the right to freedom of speech
and to peacefully assemble and petition the
government for redress of grievances are
fundamental personal rights of the people
recognized and guaranteed by the
constitutions of democratic countries" and that
the city or town mayors are not conferred "the
power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or
specify the streets or public places where the
parade or procession may pass or the meeting
may be held." The most recent graphic
demonstration of what this great right of
peaceful assembly and petition for redress of
grievances could accomplish was the civil
rights march on Washington twenty years ago
under the late assassinated black leader Martin
Luther King, Jr. (whose birthday has now been
declared an American national holiday) which
subpoenaed the conscience of the nation," and
awakened the conscience of millions of
previously indifferent Americans and eventually
(after many disorders and riots yet to come)
was to put an end to segregation and
discrimination against the American Negro.
The procedure for the securing of such permits
for peaceable assembly is succintly set forth in
the summary given by the Court Justice in
paragraph 8 of the Court's opinion, with the
injunction that "the presumption must be to
incline the weight of the scales of justice on the
side of such rights, enjoying as they do,
precedence and primacy," The exception of the
clear and present danger rule, which alone
would warrant a limitation of these fundamental
rights, is therein restated in paragraph 1, thus:
"The sole justification for a limitation on the
exercise of this right, so fundamental to the
maintenance of democratic institutions, is the
danger, of a character both grave and
imminent, of a serious evil to public safety,
public morals, public health, or any other
legitimate public interest. "
It bears emphasis that the burden to show the
existence of grave and imminent danger that
would justify adverse action on the application
lies on the mayor as licensing authority. There
must be objective and convincing, not
subjective or conjectural proof of the existence
of such clear and present danger. As stated in
our Resolution of October 25, 1983, which
granted the mandatory injunction as prayed for,
"It is essential for the validity of a denial of a
permit which amounts to a previous restraint or
censorship that the licensing authority does not
rely solely on his own appraisal of what public
welfare, peace or safety may require. To justify
such a limitation there must be proof of such
weight and sufficiency to satisfy the clear and
present danger test. The possibility that
subversives may infiltrate the ranks of the
demonstrators is not enough." As stated by
Justice Brandeis in his concurring opinion
in Whitney vs. California. 2 têñ.£îhqwâ£
Fear of serious injury cannot
alone justify suppression of free
speech and assembly. Men
feared witches and burned
women. It is the function of
speech to free men from the
bondage of irrational fears. To
justify suppression of free speech
there must be reasonable ground
to fear that serious evil will result
if free speech is practiced. There
must be reasonable ground to
believe that the danger
apprehended is imminent. There
must be reasonable ground to
believe that the evil to be
prevented is a serious one * * *.
 HUMAN RIGHTS PRELIMFULLTEXT CASES
Those who won our
independence by revolution were
not cowards. They did not fear
political change. They did not
exalt order at the cost of liberty. *
**
Moreover, even imminent danger
cannot justify resort to prohibition
of these functions essential (for)
effective democracy, unless the
evil apprehended is relatively
serious. Prohibition of free
speech and assembly is a
measure so stringent that it would
be inappropriate as the means for
averting a relatively trivial harm to
a society. * * * The fact that
speech is likely to result in some
violence or in destruction of
property is not enough to justify
its suppression. There must be
the probability of serious injury to
the state. Among freemen the
deterrents ordinarily to be applied
to prevent crimes are education
and punishment for violations of
the law, not abridgment of the
rights of free speech and
assembly. (Emphasis supplied)
The Court's opinion underscores that the
exercise of the right is not to be "abridged on
the plea that it may be exercised in some other
place" (paragraph 6), and that "it is the duty of
the city authorities to provide the proper police
protection to those exercising their right to
peaceable assembly and freedom of
expression," (at page 14) The U.S. Supreme
Court's pronouncement in Hague vs.
3
Committee for Industrial Organization   cited in
Fugoso is worth repeating: têñ.£îhqwâ£
* * * Wherever the title of streets
and parks may rest, they have
immemorially been held in trust
for the use of the public and, time
out of mind, have been used for
purposes of assembly,
communicating thoughts between
citizens, and discussing public
questions. Such use of the
streets and public places has,
from ancient times, been a part of
the privileges, immunities, rights,
and liberties of citizens. The
privilege of a citizen * * * to use
the streets and parks for
communication of views on
national questions may be
regulated in the interest of all; it is
not absolute, but relative, and
must be exercised in
subordination to the general
comfort and convenience, and in
consonance with peace and good
order; but it must not, in the guise
of regulation, be abridged or
denied.
We think the court below was
right in holding the ordinance
quoted in Note I void upon its
face. It does not make comfort or
convenience in the use of streets
or parks the standard of official
action. It enables the Director of
Safety to refuse a permit on his
mere opinion that such refusal
will prevent 'riots, disturbances or
disorderly assemblage. It can
thus, as the record discloses, be
made the instrument of arbitrary
suppression of free expression of
views on national affairs for the
prohibition of all speaking will
undoubtedly 'prevent' such
eventualities. But uncontrolled
official suppression of the
privilege cannot be made a
substitute for the duty to maintain
order in connection with the
exercise of the right. (Emphasis
supplied)
Needless to say, the leaders of the peaceable
assembly should take all the necessary
measures to ensure a peaceful march and
assembly and to avoid the possibility of
infiltrators and troublemakers disrupting the
same, concommitantly with the duty of the
police to extend protection to the participants
"staying at a discreet distance, but ever ready
and alert to perform their duty." But should any
disorderly conduct or incidents occur, whether
provoked or otherwise, it is well to recall former
Chief Justice Ricardo Paras' injunction in his
concurring opinion in Fugoso, citing the 1907
case of U.S. vs. Apurado, 4 that such instances
of "disorderly conduct by individual members of
a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and
tumultuous rising against the authorities" and
render illusory the right of peaceable assembly,
thus: têñ.£îhqwâ£
It is rather to be expected that
more or less disorder will mark
the public assembly of the people
to protest against grievances
whether real or imaginary,
because on such occasions
 HUMAN RIGHTS PRELIMFULLTEXT CASES
feeling is always wrought to a
high pitch of excitement, and the
greater the grievance and the
more intense the feeling, the less
perfect, as a rule, will the
disciplinary control of the leaders
over their irresponsible
followers. But if the prosecution
be permitted to seize upon every
instance of such disorderly
conduct by individual members of
a crowd as an excuse to
characterize the assembly as a
seditious and tumultous rising
against the authorities, 'then the
right to assemble and to petition
for redress of grievances would
become a delusion and snare
and the attempt to exercise it on
the most righteous occasion and
in the most peaceable manner
would expose all those who took
part therein to the severest and
most unmerited punishment, if
the purposes which they sought
to attain did not happen to be
pleasing to the prosecuting
authorities. If instances of
disorderly conduct occur on such
occasions, the guilty individuals
should be sought out and
punished therefor. (Emphasis
supplied).
As it turned out, the demonstration was held on
October 26, 1983 peaceably and without any
untoward event or evil result, as pledged by the
organizers (like at least five previous peaceful
demonstrations in the area). However, even if
there had been any incidents of disorder, this
would in no way show the Court's mandatory
injunction to have been wrongfully issued. The
salutary desire on the part of respondent to
prevent disorder cannot be pursued by the
unjustified denial and suppression of the
people's basic rights, which would thereby turn
out to be mere paper rights.
MAKASIAR, J., concurring:
With the justification that in case of conflict, the
Philippine Constitution — particularly the Bill of
Rights — should prevail over the Vienna
Convention.
ABAD SANTOS, J., concurring:
To add anything to the learned opinion of the
Chief Justice is like bringing coal to Newcastle,
I just want to state for the record that I voted for
the issuance ex-parte of a preliminary
mandatory injunction.
PLANA, J., concurring:
On the whole, I concur in the learned views of
the distinguished Chief Justice. I would like
however to voice a reservation regarding
Ordinance No. 7295 of the City of Manila which
has been invoked by the respondent.
The main opinion yields the implication that a
rally or demonstration made within 500 feet
from the chancery of a foreign embassy would
be banned for coming within the terms of the
prohibition of the cited Ordinance which was
adopted, so it is said, precisely to implement a
treaty obligation of the Philippines under the
1961 Vienna Convention on Diplomatic
Relations.
In my view, without saying that the Ordinance
is obnoxious per se to the constitution, it
cannot be validly invoked whenever its
application would collide with a constitutionally
guaranteed right such as freedom of assembly
and/or expression, as in the case at bar,
regardless of whether the chancery of any
foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.
VICTORIANO V. ELIZALDE ROPE
WORKERS’ UNION
G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, Plaintiff-Appellee,
vs. ELIZALDE ROPE WORKERS' UNION and
ELIZALDE ROPE FACTORY, INC.,
defendants, ELIZALDE ROPE WORKERS'
UNION, Defendant-Appellant.
Salonga, Ordonez, Yap, Sicat & Associates for
plaintiff-appellee.
Cipriano Cid & Associates for defendant-
appellant.
ZALDIVAR, J.:
Appeal to this Court on purely questions of law
from the decision of the Court of First Instance
of Manila in its Civil Case No.
58894.chanroblesvirtualawlibrarychanrobles
virtual law library
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The undisputed facts that spawned the instant
case follow:chanrobles virtual law library
Benjamin Victoriano (hereinafter referred to as
Appellee), a member of the religious sect
known as the "Iglesia ni Cristo", had been in
the employ of the Elizalde Rope Factory, Inc.
(hereinafter referred to as Company) since
1958. As such employee, he was a member of
the Elizalde Rope Workers' Union (hereinafter
referred to as Union) which had with the
Company a collective bargaining agreement
containing a closed shop provision which reads
as follows:
Membership in the Union shall be required as a
condition of employment for all permanent
employees workers covered by this
Agreement.
The collective bargaining agreement expired
on March 3, 1964 but was renewed the
following day, March 4,
1964.chanroblesvirtualawlibrarychanrobles
virtual law library
Under Section 4(a), paragraph 4, of Republic
Act No. 875, prior to its amendment by
Republic Act No. 3350, the employer was not
precluded "from making an agreement with a
labor organization to require as a condition of
employment membership therein, if such labor
organization is the representative of the
employees." On June 18, 1961, however,
Republic Act No. 3350 was enacted,
introducing an amendment to - paragraph (4)
subsection (a) of section 4 of Republic Act No.
875, as follows: ... "but such agreement shall
not cover members of any religious sects which
prohibit affiliation of their members in any such
labor
organization".chanroblesvirtualawlibrarychanro
bles virtual law library
Being a member of a religious sect that
prohibits the affiliation of its members with any
labor organization, Appellee presented his
resignation to appellant Union in 1962, and
when no action was taken thereon, he
reiterated his resignation on September 3,
1974. Thereupon, the Union wrote a formal
letter to the Company asking the latter to
separate Appellee from the service in view of
the fact that he was resigning from the Union
as a member. The management of the
Company in turn notified Appellee and his
counsel that unless the Appellee could achieve
a satisfactory arrangement with the Union, the
Company would be constrained to dismiss him
from the service. This prompted Appellee to file
an action for injunction, docketed as Civil Case
No. 58894 in the Court of First Instance of
Manila to enjoin the Company and the Union
from dismissing Appellee. 1In its answer, the
Union invoked the "union security clause" of
the collective bargaining agreement; assailed
the constitutionality of Republic Act No. 3350;
and contended that the Court had no
jurisdiction over the case, pursuant to Republic
Act No. 875, Sections 24 and 9 (d) and
(e). 2Upon the facts agreed upon by the parties
during the pre-trial conference, the Court a
quo rendered its decision on August 26, 1965,
the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is
rendered enjoining the defendant Elizalde
Rope Factory, Inc. from dismissing the plaintiff
from his present employment and sentencing
the defendant Elizalde Rope Workers' Union to
pay the plaintiff P500 for attorney's fees and
the costs of this action. 3chanrobles virtual law
library
From this decision, the Union appealed directly
to this Court on purely questions of law,
assigning the following errors:
I. That the lower court erred when it did not rule
that Republic Act No. 3350 is
unconstitutional.chanroblesvirtualawlibrarychan
robles virtual law library
II. That the lower court erred when it sentenced
appellant herein to pay plaintiff the sum of
P500 as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of
Republic Act No. 3350, the Union contented,
firstly, that the Act infringes on the fundamental
right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that
membership in a labor organization is banned
to all those belonging to such religious sect
prohibiting affiliation with any labor
 4
organization" , "prohibits all the members of a
given religious sect from joining any labor
union if such sect prohibits affiliations of their
members thereto" 5; and, consequently,
deprives said members of their constitutional
right to form or join lawful associations or
organizations guaranteed by the Bill of Rights,
and thus becomes obnoxious to Article III,
Section 1 (6) of the 1935
6
Constitution.  chanrobles virtual law library
Secondly, the Union contended that Republic
Act No. 3350 is unconstitutional for impairing
the obligation of contracts in that, while the
Union is obliged to comply with its collective
bargaining agreement containing a "closed
shop provision," the Act relieves the employer
 HUMAN RIGHTS PRELIMFULLTEXT CASES
from its reciprocal obligation of cooperating in
the maintenance of union membership as a
condition of employment; and that said Act,
furthermore, impairs the Union's rights as it
deprives the union of dues from members who,
under the Act, are relieved from the obligation
to continue as such members. 7chanrobles
virtual law library
Thirdly, the Union contended that Republic Act
No. 3350 discriminatorily favors those religious
sects which ban their members from joining
labor unions, in violation of Article Ill, Section 1
(7) of the 1935 Constitution; and while said Act
unduly protects certain religious sects, it leaves
no rights or protection to labor
 8
organizations. chanrobles virtual law library
Fourthly, Republic Act No. 3350, asserted the
Union, violates the constitutional provision that
"no religious test shall be required for the
exercise of a civil right," in that the laborer's
exercise of his civil right to join associations for
purposes not contrary to law has to be
determined under the Act by his affiliation with
a religious sect; that conversely, if a worker has
to sever his religious connection with a sect
that prohibits membership in a labor
organization in order to be able to join a labor
organization, said Act would violate religious
freedom. 9chanrobles virtual law library
Fifthly, the Union contended that Republic Act
No. 3350, violates the "equal protection of
laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by
exempting from the operation of closed shop
agreement the members of the "Iglesia ni
Cristo", it has granted said members undue
advantages over their fellow workers, for while
the Act exempts them from union obligation
and liability, it nevertheless entitles them at the
same time to the enjoyment of all concessions,
benefits and other emoluments that the union
might secure from the employer. 10chanrobles
virtual law library
Sixthly, the Union contended that Republic Act
No. 3350 violates the constitutional provision
regarding the promotion of social
justice. 11chanrobles virtual law library
Appellant Union, furthermore, asserted that a
"closed shop provision" in a collective
bargaining agreement cannot be considered
violative of religious freedom, as to call for the
amendment introduced by Republic Act No.
3350; 12and that unless Republic Act No. 3350
is declared unconstitutional, trade unionism in
this country would be wiped out as employers
would prefer to hire or employ members of the
Iglesia ni Cristo in order to do away with labor
organizations. 13chanrobles virtual law library
Appellee, assailing appellant's arguments,
contended that Republic Act No. 3350 does not
violate the right to form lawful associations, for
the right to join associations includes the right
not to join or to resign from a labor
organization, if one's conscience does not
allow his membership therein, and the Act has
given substance to such right by prohibiting the
compulsion of workers to join labor
organizations; 14that said Act does not impair
the obligation of contracts for said law formed
part of, and was incorporated into, the terms of
the closed shop agreement; 15that the Act does
not violate the establishment of religion clause
or separation of Church and State, for
Congress, in enacting said law, merely
accommodated the religious needs of those
workers whose religion prohibits its members
from joining labor unions, and balanced the
collective rights of organized labor with the
constitutional right of an individual to freely
exercise his chosen religion; that the
constitutional right to the free exercise of one's
religion has primacy and preference over union
security measures which are merely
contractual 16; that said Act does not violate the
constitutional provision of equal protection, for
the classification of workers under the Act
depending on their religious tenets is based on
substantial distinction, is germane to the
purpose of the law, and applies to all the
members of a given class; 17that said Act,
finally, does not violate the social justice policy
of the Constitution, for said Act was enacted
precisely to equalize employment opportunities
for all citizens in the midst of the diversities of
their religious beliefs." 18chanrobles virtual law
library
I. Before We proceed to the discussion of the
first assigned error, it is necessary to premise
that there are some thoroughly established
principles which must be followed in all cases
where questions of constitutionality as obtains
in the instant case are involved. All
presumptions are indulged in favor of
constitutionality; one who attacks a statute,
alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt, that a
law may work hardship does not render it
unconstitutional; that if any reasonable basis
may be conceived which supports the statute, it
will be upheld, and the challenger must negate
all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal
interpretation of the constitution in favor of the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
constitutionality of legislation should be
adopted. 19chanrobles virtual law library
1. Appellant Union's contention that Republic
Act No. 3350 prohibits and bans the members
of such religious sects that forbid affiliation of
their members with labor unions from joining
labor unions appears nowhere in the wording
of Republic Act No. 3350; neither can the same
be deduced by necessary implication
therefrom. It is not surprising, therefore, that
appellant, having thus misread the Act,
committed the error of contending that said Act
is obnoxious to the constitutional provision on
freedom of
association.chanroblesvirtualawlibrarychanrobl
es virtual law library
Both the Constitution and Republic Act No. 875
recognize freedom of association. Section 1 (6)
of Article III of the Constitution of 1935, as well
as Section 7 of Article IV of the Constitution of
1973, provide that the right to form
associations or societies for purposes not
contrary to law shall not be abridged. Section 3
of Republic Act No. 875 provides that
employees shall have the right to self-
organization and to form, join of assist labor
organizations of their own choosing for the
purpose of collective bargaining and to engage
in concerted activities for the purpose of
collective bargaining and other mutual aid or
protection. What the Constitution and the
Industrial Peace Act recognize and guarantee
is the "right" to form or join associations.
Notwithstanding the different theories
propounded by the different schools of
jurisprudence regarding the nature and
contents of a "right", it can be safely said that
whatever theory one subscribes to, a right
comprehends at least two broad notions,
namely: first, liberty or freedom, i.e., the
absence of legal restraint, whereby an
employee may act for himself without being
prevented by law; and second, power, whereby
an employee may, as he pleases, join or refrain
from Joining an association. It is, therefore, the
employee who should decide for himself
whether he should join or not an association;
and should he choose to join, he himself
makes up his mind as to which association he
would join; and even after he has joined, he still
retains the liberty and the power to leave and
cancel his membership with said organization
at any time. 20It is clear, therefore, that the right
to join a union includes the right to abstain from
joining any union. 21Inasmuch as what both the
Constitution and the Industrial Peace Act have
recognized, and guaranteed to the employee,
is the "right" to join associations of his choice, it
would be absurd to say that the law also
imposes, in the same breath, upon the
employee the duty to join associations. The law
does not enjoin an employee to sign up with
any
association.chanroblesvirtualawlibrarychanrobl
es virtual law library
The right to refrain from joining labor
organizations recognized by Section 3 of the
Industrial Peace Act is, however, limited. The
legal protection granted to such right to refrain
from joining is withdrawn by operation of law,
where a labor union and an employer have
agreed on a closed shop, by virtue of which the
employer may employ only member of the
collective bargaining union, and the employees
must continue to be members of the union for
the duration of the contract in order to keep
their jobs. Thus Section 4 (a) (4) of the
Industrial Peace Act, before its amendment by
Republic Act No. 3350, provides that although
it would be an unfair labor practice for an
employer "to discriminate in regard to hire or
tenure of employment or any term or condition
of employment to encourage or discourage
membership in any labor organization" the
employer is, however, not precluded "from
making an agreement with a labor organization
to require as a condition of employment
membership therein, if such labor organization
is the representative of the employees". By
virtue, therefore, of a closed shop agreement,
before the enactment of Republic Act No.
3350, if any person, regardless of his religious
beliefs, wishes to be employed or to keep his
employment, he must become a member of the
collective bargaining union. Hence, the right of
said employee not to join the labor union is
curtailed and
withdrawn.chanroblesvirtualawlibrarychanroble
s virtual law library
To that all-embracing coverage of the closed
shop arrangement, Republic Act No. 3350
introduced an exception, when it added to
Section 4 (a) (4) of the Industrial Peace Act the
following proviso: "but such agreement shall
not cover members of any religious sects which
prohibit affiliation of their members in any such
labor organization". Republic Act No. 3350
merely excludes ipso jure from the application
and coverage of the closed shop agreement
the employees belonging to any religious sects
which prohibit affiliation of their members with
any labor organization. What the exception
provides, therefore, is that members of said
religious sects cannot be compelled or coerced
to join labor unions even when said unions
have closed shop agreements with the
employers; that in spite of any closed shop
agreement, members of said religious sects
 HUMAN RIGHTS PRELIMFULLTEXT CASES
cannot be refused employment or dismissed
from their jobs on the sole ground that they are
not members of the collective bargaining union.
It is clear, therefore, that the assailed Act, far
from infringing the constitutional provision on
freedom of association, upholds and reinforces
it. It does not prohibit the members of said
religious sects from affiliating with labor unions.
It still leaves to said members the liberty and
the power to affiliate, or not to affiliate, with
labor unions. If, notwithstanding their religious
beliefs, the members of said religious sects
prefer to sign up with the labor union, they can
do so. If in deference and fealty to their
religious faith, they refuse to sign up, they can
do so; the law does not coerce them to join;
neither does the law prohibit them from joining;
and neither may the employer or labor union
compel them to join. Republic Act No. 3350,
therefore, does not violate the constitutional
provision on freedom of
association.chanroblesvirtualawlibrarychanrobl
es virtual law library
2. Appellant Union also contends that the Act is
unconstitutional for impairing the obligation of
its contract, specifically, the "union security
clause" embodied in its Collective Bargaining
Agreement with the Company, by virtue of
which "membership in the union was required
as a condition for employment for all
permanent employees workers". This
agreement was already in existence at the time
Republic Act No. 3350 was enacted on June
18, 1961, and it cannot, therefore, be deemed
to have been incorporated into the agreement.
But by reason of this amendment, Appellee, as
well as others similarly situated, could no
longer be dismissed from his job even if he
should cease to be a member, or disaffiliate
from the Union, and the Company could
continue employing him notwithstanding his
disaffiliation from the Union. The Act, therefore,
introduced a change into the express terms of
the union security clause; the Company was
partly absolved by law from the contractual
obligation it had with the Union of employing
only Union members in permanent positions, It
cannot be denied, therefore, that there was
indeed an impairment of said union security
clause.chanroblesvirtualawlibrarychanrobles
virtual law library
According to Black, any statute which
introduces a change into the express terms of
the contract, or its legal construction, or its
validity, or its discharge, or the remedy for its
enforcement, impairs the contract. The extent
of the change is not material. It is not a
question of degree or manner or cause, but of
encroaching in any respect on its obligation or
dispensing with any part of its force. There is
an impairment of the contract if either party is
absolved by law from its
22
performance.  Impairment has also been
predicated on laws which, without destroying
contracts, derogate from substantial
contractual rights. 23chanrobles virtual law
library
It should not be overlooked, however, that the
prohibition to impair the obligation of contracts
is not absolute and unqualified. The prohibition
is general, affording a broad outline and
requiring construction to fill in the details. The
prohibition is not to be read with literal
exactness like a mathematical formula, for it
prohibits unreasonable impairment only. 24In
spite of the constitutional prohibition, the State
continues to possess authority to safeguard the
vital interests of its people. Legislation
appropriate to safeguarding said interests may
modify or abrogate contracts already in
effect. 25For not only are existing laws read into
contracts in order to fix the obligations as
between the parties, but the reservation of
essential attributes of sovereign power is also
read into contracts as a postulate of the legal
order. All contracts made with reference to any
matter that is subject to regulation under the
police power must be understood as made in
reference to the possible exercise of that
power. 26Otherwise, important and valuable
reforms may be precluded by the simple device
of entering into contracts for the purpose of
doing that which otherwise may be prohibited.
The policy of protecting contracts against
impairment presupposes the maintenance of a
government by virtue of which contractual
relations are worthwhile a government which
retains adequate authority to secure the peace
and good order of society. The contract clause
of the Constitution must, therefore, be not only
in harmony with, but also in subordination to, in
appropriate instances, the reserved power of
the state to safeguard the vital interests of the
people. It follows that not all legislations, which
have the effect of impairing a contract, are
obnoxious to the constitutional prohibition as to
impairment, and a statute passed in the
legitimate exercise of police power, although it
incidentally destroys existing contract rights,
must be upheld by the courts. This has special
application to contracts regulating relations
between capital and labor which are not merely
contractual, and said labor contracts, for being
impressed with public interest, must yield to the
common good. 27chanrobles virtual law library
In several occasions this Court declared that
the prohibition against impairing the obligations
of contracts has no application to statutes
 HUMAN RIGHTS PRELIMFULLTEXT CASES
relating to public subjects within the domain of
the general legislative powers of the state
involving public welfare. 28Thus, this Court also
held that the Blue Sunday Law was not an
infringement of the obligation of a contract that
required the employer to furnish work on
Sundays to his employees, the law having
been enacted to secure the well-being and
happiness of the laboring class, and being,
furthermore, a legitimate exercise of the police
power. 29chanrobles virtual law library
In order to determine whether legislation
unconstitutionally impairs contract obligations,
no unchanging yardstick, applicable at all times
and under all circumstances, by which the
validity of each statute may be measured or
determined, has been fashioned, but every
case must be determined upon its own
circumstances. Legislation impairing the
obligation of contracts can be sustained when it
is enacted for the promotion of the general
good of the people, and when the means
adopted to secure that end are reasonable.
Both the end sought and the means adopted
must be legitimate, i.e., within the scope of the
reserved power of the state construed in
harmony with the constitutional limitation of that
power. 30chanrobles virtual law library
What then was the purpose sought to be
achieved by Republic Act No. 3350? Its
purpose was to insure freedom of belief and
religion, and to promote the general welfare by
preventing discrimination against those
members of religious sects which prohibit their
members from joining labor unions, confirming
thereby their natural, statutory and
constitutional right to work, the fruits of which
work are usually the only means whereby they
can maintain their own life and the life of their
dependents. It cannot be gainsaid that said
purpose is
legitimate.chanroblesvirtualawlibrarychanrobles
virtual law library
The questioned Act also provides protection to
members of said religious sects against two
aggregates of group strength from which the
individual needs protection. The individual
employee, at various times in his working life,
is confronted by two aggregates of power -
collective labor, directed by a union, and
collective capital, directed by management.
The union, an institution developed to organize
labor into a collective force and thus protect the
individual employee from the power of
collective capital, is, paradoxically, both the
champion of employee rights, and a new
source of their frustration. Moreover, when the
Union interacts with management, it produces
yet a third aggregate of group strength from
which the individual also needs protection - the
collective bargaining relationship. 31chanrobles
virtual law library
The aforementioned purpose of the
amendatory law is clearly seen in the
Explanatory Note to House Bill No. 5859, which
later became Republic Act No. 3350, as
follows:
It would be unthinkable indeed to refuse
employing a person who, on account of his
religious beliefs and convictions, cannot accept
membership in a labor organization although
he possesses all the qualifications for the job.
This is tantamount to punishing such person for
believing in a doctrine he has a right under the
law to believe in. The law would not allow
discrimination to flourish to the detriment of
those whose religion discards membership in
any labor organization. Likewise, the law would
not commend the deprivation of their right to
work and pursue a modest means of livelihood,
without in any manner violating their religious
faith and/or belief. 32chanrobles virtual law
library
It cannot be denied, furthermore, that the
means adopted by the Act to achieve that
purpose - exempting the members of said
religious sects from coverage of union security
agreements - is
reasonable.chanroblesvirtualawlibrarychanrobl
es virtual law library
It may not be amiss to point out here that the
free exercise of religious profession or belief is
superior to contract rights. In case of conflict,
the latter must, therefore, yield to the former.
The Supreme Court of the United States has
also declared on several occasions that the
rights in the First Amendment, which include
freedom of religion, enjoy a preferred position
in the constitutional system. 33Religious
freedom, although not unlimited, is a
fundamental personal right and liberty, 34and
has a preferred position in the hierarchy of
values. Contractual rights, therefore, must yield
to freedom of religion. It is only where
unavoidably necessary to prevent an
immediate and grave danger to the security
and welfare of the community that infringement
of religious freedom may be justified, and only
to the smallest extent necessary to avoid the
danger.chanroblesvirtualawlibrarychanrobles
virtual law library
3. In further support of its contention that
Republic Act No. 3350 is unconstitutional,
appellant Union averred that said Act
 HUMAN RIGHTS PRELIMFULLTEXT CASES
discriminates in favor of members of said
religious sects in violation of Section 1 (7) of
Article Ill of the 1935 Constitution, and which is
now Section 8 of Article IV of the 1973
Constitution, which provides:
No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and
enjoyment of religious profession and worship,
without discrimination and preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political
rights.
The constitutional provision into only prohibits
legislation for the support of any religious
tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the
acceptance of any creed or the practice of any
form of worship, 35but also assures the free
exercise of one's chosen form of religion within
limits of utmost amplitude. It has been said that
the religion clauses of the Constitution are all
designed to protect the broadest possible
liberty of conscience, to allow each man to
believe as his conscience directs, to profess
his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and
with the common good. 36Any legislation whose
effect or purpose is to impede the observance
of one or all religions, or to discriminate
invidiously between the religions, is invalid,
even though the burden may be characterized
as being only indirect. 37But if the stage
regulates conduct by enacting, within its power,
a general law which has for its purpose and
effect to advance the state's secular goals, the
statute is valid despite its indirect burden on
religious observance, unless the state can
accomplish its purpose without imposing such
burden. 38chanrobles virtual law library
In Aglipay v. Ruiz 39, this Court had occasion to
state that the government should not be
precluded from pursuing valid objectives
secular in character even if the incidental result
would be favorable to a religion or sect. It has
likewise been held that the statute, in order to
withstand the strictures of constitutional
prohibition, must have a secular legislative
purpose and a primary effect that neither
advances nor inhibits religion. 40Assessed by
these criteria, Republic Act No. 3350 cannot be
said to violate the constitutional inhibition of the
"no-establishment" (of religion) clause of the
Constitution.chanroblesvirtualawlibrarychanrobl
es virtual law library
The purpose of Republic Act No. 3350 is
secular, worldly, and temporal, not spiritual or
religious or holy and eternal. It was intended to
serve the secular purpose of advancing the
constitutional right to the free exercise of
religion, by averting that certain persons be
refused work, or be dismissed from work, or be
dispossessed of their right to work and of being
impeded to pursue a modest means of
livelihood, by reason of union security
agreements. To help its citizens to find gainful
employment whereby they can make a living to
support themselves and their families is a valid
objective of the state. In fact, the state is
enjoined, in the 1935 Constitution, to afford
protection to labor, and regulate the relations
between labor and capital and industry. 41More
so now in the 1973 Constitution where it is
mandated that "the State shall afford protection
to labor, promote full employment and equality
in employment, ensure equal work
opportunities regardless of sex, race or creed
and regulate the relation between workers and
employers. 42chanrobles virtual law library
The primary effects of the exemption from
closed shop agreements in favor of members
of religious sects that prohibit their members
from affiliating with a labor organization, is the
protection of said employees against the
aggregate force of the collective bargaining
agreement, and relieving certain citizens of a
burden on their religious beliefs; and by
eliminating to a certain extent economic
insecurity due to unemployment, which is a
serious menace to the health, morals, and
welfare of the people of the State, the Act also
promotes the well-being of society. It is our
view that the exemption from the effects of
closed shop agreement does not directly
advance, or diminish, the interests of any
particular religion. Although the exemption may
benefit those who are members of religious
sects that prohibit their members from joining
labor unions, the benefit upon the religious
sects is merely incidental and indirect. The
"establishment clause" (of religion) does not
ban regulation on conduct whose reason or
effect merely happens to coincide or harmonize
with the tenets of some or all religions. 43The
free exercise clause of the Constitution has
been interpreted to require that religious
exercise be preferentially aided. 44chanrobles
virtual law library
We believe that in enacting Republic Act No.
3350, Congress acted consistently with the
spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by
union security agreements. It was Congress
itself that imposed that burden when it enacted
the Industrial Peace Act (Republic Act 875),
 HUMAN RIGHTS PRELIMFULLTEXT CASES
and, certainly, Congress, if it so deems
advisable, could take away the same burden. It
is certain that not every conscience can be
accommodated by all the laws of the land; but
when general laws conflict with scrupples of
conscience, exemptions ought to be granted
unless some "compelling state interest"
intervenes. 45In the instant case, We see no
such compelling state interest to withhold
exemption.chanroblesvirtualawlibrarychanroble
s virtual law library
Appellant bewails that while Republic Act No.
3350 protects members of certain religious
sects, it leaves no right to, and is silent as to
the protection of, labor organizations. The
purpose of Republic Act No. 3350 was not to
grant rights to labor unions. The rights of labor
unions are amply provided for in Republic Act
No. 875 and the new Labor Code. As to the
lamented silence of the Act regarding the rights
and protection of labor unions, suffice it to say,
first, that the validity of a statute is determined
by its provisions, not by its silence 46; and,
second, the fact that the law may work
hardship does not render it
unconstitutional. 47chanrobles virtual law library
It would not be amiss to state, regarding this
matter, that to compel persons to join and
remain members of a union to keep their jobs
in violation of their religious scrupples, would
hurt, rather than help, labor unions, Congress
has seen it fit to exempt religious objectors lest
their resistance spread to other workers, for
religious objections have contagious
potentialities more than political and
philosophic
objections.chanroblesvirtualawlibrarychanroble
s virtual law library
Furthermore, let it be noted that coerced unity
and loyalty even to the country, and a fortiori to
a labor - union assuming that such unity and
loyalty can be attained through coercion - is not
a goal that is constitutionally obtainable at the
expense of religious liberty. 48A desirable end
cannot be promoted by prohibited
means.chanroblesvirtualawlibrarychanrobles
virtual law library
4. Appellants' fourth contention, that Republic
Act No. 3350 violates the constitutional
prohibition against requiring a religious test for
the exercise of a civil right or a political right, is
not well taken. The Act does not require as a
qualification, or condition, for joining any lawful
association membership in any particular
religion or in any religious sect; neither does
the Act require affiliation with a religious sect
that prohibits its members from joining a labor
union as a condition or qualification for
withdrawing from a labor union. Joining or
withdrawing from a labor union requires a
positive act. Republic Act No. 3350 only
exempts members with such religious affiliation
from the coverage of closed shop agreements.
So, under this Act, a religious objector is not
required to do a positive act - to exercise the
right to join or to resign from the union. He is
exempted ipso jure without need of any
positive act on his part. A conscientious
religious objector need not perform a positive
act or exercise the right of resigning from the
labor union - he is exempted from the coverage
of any closed shop agreement that a labor
union may have entered into. How then can
there be a religious test required for the
exercise of a right when no right need be
exercised?chanrobles virtual law library
We have said that it was within the police
power of the State to enact Republic Act No.
3350, and that its purpose was legal and in
consonance with the Constitution. It is never an
illegal evasion of a constitutional provision or
prohibition to accomplish a desired result,
which is lawful in itself, by discovering or
following a legal way to do it. 49chanrobles
virtual law library
5. Appellant avers as its fifth ground that
Republic Act No. 3350 is a discriminatory
legislation, inasmuch as it grants to the
members of certain religious sects undue
advantages over other workers, thus violating
Section 1 of Article III of the 1935 Constitution
which forbids the denial to any person of the
equal protection of the laws. 50chanrobles
virtual law library
The guaranty of equal protection of the laws is
not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that
every man, woman and child should be
affected alike by a statute. Equality of operation
of statutes does not mean indiscriminate
operation on persons merely as such, but on
persons according to the circumstances
surrounding them. It guarantees equality, not
identity of rights. The Constitution does not
require that things which are different in fact be
treated in law as though they were the same.
The equal protection clause does not forbid
discrimination as to things that are different. 51It
does not prohibit legislation which is limited
either in the object to which it is directed or by
the territory within which it is to
operate.chanroblesvirtualawlibrarychanrobles
virtual law library
 HUMAN RIGHTS PRELIMFULLTEXT CASES
The equal protection of the laws clause of the
Constitution allows classification. Classification
in law, as in the other departments of
knowledge or practice, is the grouping of things
in speculation or practice because they agree
with one another in certain particulars. A law is
not invalid because of simple inequality. 52The
very idea of classification is that of inequality,
so that it goes without saying that the mere fact
of inequality in no manner determines the
matter of constitutionality. 53All that is required
of a valid classification is that it be reasonable,
which means that the classification should be
based on substantial distinctions which make
for real differences; that it must be germane to
the purpose of the law; that it must not be
limited to existing conditions only; and that it
must apply equally to each member of the
class. 54This Court has held that the standard is
satisfied if the classification or distinction is
based on a reasonable foundation or rational
basis and is not palpably arbitrary. 55chanrobles
virtual law library
In the exercise of its power to make
classifications for the purpose of enacting laws
over matters within its jurisdiction, the state is
recognized as enjoying a wide range of
discretion. 56It is not necessary that the
classification be based on scientific or marked
differences of things or in their
57
relation.  Neither is it necessary that the
classification be made with mathematical
nicety. 58Hence legislative classification may in
many cases properly rest on narrow
distinctions, 59for the equal protection guaranty
does not preclude the legislature from
recognizing degrees of evil or harm, and
legislation is addressed to evils as they may
appear.chanroblesvirtualawlibrarychanrobles
virtual law library
We believe that Republic Act No. 3350 satisfies
the aforementioned requirements. The Act
classifies employees and workers, as to the
effect and coverage of union shop security
agreements, into those who by reason of their
religious beliefs and convictions cannot sign up
with a labor union, and those whose religion
does not prohibit membership in labor unions.
Tile classification rests on real or substantial,
not merely imaginary or whimsical, distinctions.
There is such real distinction in the beliefs,
feelings and sentiments of employees.
Employees do not believe in the same religious
faith and different religions differ in their
dogmas and cannons. Religious beliefs,
manifestations and practices, though they are
found in all places, and in all times, take so
many varied forms as to be almost beyond
imagination. There are many views that
comprise the broad spectrum of religious
beliefs among the people. There are diverse
manners in which beliefs, equally paramount in
the lives of their possessors, may be
articulated. Today the country is far more
heterogenous in religion than before,
differences in religion do exist, and these
differences are important and should not be
ignored.chanroblesvirtualawlibrarychanrobles
virtual law library
Even from the phychological point of view, the
classification is based on real and important
differences. Religious beliefs are not mere
beliefs, mere ideas existing only in the mind,
for they carry with them practical
consequences and are the motives of certain
rules. of human conduct and the justification of
certain acts. 60Religious sentiment makes a
man view things and events in their relation to
his God. It gives to human life its distinctive
character, its tone, its happiness or
unhappiness its enjoyment or irksomeness.
Usually, a strong and passionate desire is
involved in a religious belief. To certain
persons, no single factor of their experience is
more important to them than their religion, or
their not having any religion. Because of
differences in religious belief and sentiments, a
very poor person may consider himself better
than the rich, and the man who even lacks the
necessities of life may be more cheerful than
the one who has all possible luxuries. Due to
their religious beliefs people, like the martyrs,
became resigned to the inevitable and
accepted cheerfully even the most painful and
excruciating pains. Because of differences in
religious beliefs, the world has witnessed
turmoil, civil strife, persecution, hatred,
bloodshed and war, generated to a large extent
by members of sects who were intolerant of
other religious beliefs. The classification,
introduced by Republic Act No. 3350,
therefore, rests on substantial
distinctions.chanroblesvirtualawlibrarychanrobl
es virtual law library
The classification introduced by said Act is also
germane to its purpose. The purpose of the law
is precisely to avoid those who cannot,
because of their religious belief, join labor
unions, from being deprived of their right to
work and from being dismissed from their work
because of union shop security
agreements.chanroblesvirtualawlibrarychanrobl
es virtual law library
Republic Act No. 3350, furthermore, is not
limited in its application to conditions existing at
the time of its enactment. The law does not
provide that it is to be effective for a certain
 HUMAN RIGHTS PRELIMFULLTEXT CASES
period of time only. It is intended to apply for all
times as long as the conditions to which the
law is applicable exist. As long as there are
closed shop agreements between an employer
and a labor union, and there are employees
who are prohibited by their religion from
affiliating with labor unions, their exemption
from the coverage of said agreements
continues.chanroblesvirtualawlibrarychanrobles
virtual law library
Finally, the Act applies equally to all members
of said religious sects; this is evident from its
provision. The fact that the law grants a
privilege to members of said religious sects
cannot by itself render the Act unconstitutional,
for as We have adverted to, the Act only
restores to them their freedom of association
which closed shop agreements have taken
away, and puts them in the same plane as the
other workers who are not prohibited by their
religion from joining labor unions. The
circumstance, that the other employees,
because they are differently situated, are not
granted the same privilege, does not render the
law unconstitutional, for every classification
allowed by the Constitution by its nature
involves
inequality.chanroblesvirtualawlibrarychanrobles
virtual law library
The mere fact that the legislative classification
may result in actual inequality is not violative of
the right to equal protection, for every
classification of persons or things for regulation
by law produces inequality in some degree, but
the law is not thereby rendered invalid. A
classification otherwise reasonable does not
offend the constitution simply because in
practice it results in some inequality. 61Anent
this matter, it has been said that whenever it is
apparent from the scope of the law that its
object is for the benefit of the public and the
means by which the benefit is to be obtained
are of public character, the law will be upheld
even though incidental advantage may occur to
individuals beyond those enjoyed by the
general public. 62chanrobles virtual law library
6. Appellant's further contention that Republic
Act No. 3350 violates the constitutional
provision on social justice is also baseless.
Social justice is intended to promote the
welfare of all the people. 63Republic Act No.
3350 promotes that welfare insofar as it looks
after the welfare of those who, because of their
religious belief, cannot join labor unions; the
Act prevents their being deprived of work and
of the means of livelihood. In determining
whether any particular measure is for public
advantage, it is not necessary that the entire
state be directly benefited - it is sufficient that a
portion of the state be benefited
thereby.chanroblesvirtualawlibrarychanrobles
virtual law library
Social justice also means the adoption by the
Government of measures calculated to insure
economic stability of all component elements of
society, through the maintenance of a proper
economic and social equilibrium in the inter-
relations of the members of the
64
community.  Republic Act No. 3350 insures
economic stability to the members of a
religious sect, like the Iglesia ni Cristo, who are
also component elements of society, for it
insures security in their employment,
notwithstanding their failure to join a labor
union having a closed shop agreement with the
employer. The Act also advances the proper
economic and social equilibrium between labor
unions and employees who cannot join labor
unions, for it exempts the latter from the
compelling necessity of joining labor unions
that have closed shop agreements and
equalizes, in so far as opportunity to work is
concerned, those whose religion prohibits
membership in labor unions with those whose
religion does not prohibit said membership.
Social justice does not imply social equality,
because social inequality will always exist as
long as social relations depend on personal or
subjective proclivities. Social justice does not
require legal equality because legal equality,
being a relative term, is necessarily premised
on differentiations based on personal or natural
conditions. 65Social justice guarantees equality
of opportunity 66, and this is precisely what
Republic Act No. 3350 proposes to accomplish
- it gives laborers, irrespective of their religious
scrupples, equal opportunity for
work.chanroblesvirtualawlibrarychanrobles
virtual law library
7. As its last ground, appellant contends that
the amendment introduced by Republic Act No.
3350 is not called for - in other words, the Act
is not proper, necessary or desirable. Anent
this matter, it has been held that a statute
which is not necessary is not, for that reason,
unconstitutional; that in determining the
constitutional validity of legislation, the courts
are unconcerned with issues as to the
necessity for the enactment of the legislation in
question. 67Courts do inquire into the wisdom of
laws. 68Moreover, legislatures, being chosen by
the people, are presumed to understand and
correctly appreciate the needs of the people,
and it may change the laws accordingly. 69The
fear is entertained by appellant that unless the
Act is declared unconstitutional, employers will
prefer employing members of religious sects
 HUMAN RIGHTS PRELIMFULLTEXT CASES
that prohibit their members from joining labor
unions, and thus be a fatal blow to unionism.
We do not agree. The threat to unionism will
depend on the number of employees who are
members of the religious sects that control the
demands of the labor market. But there is really
no occasion now to go further and anticipate
problems We cannot judge with the material
now before Us. At any rate, the validity of a
statute is to be determined from its general
purpose and its efficacy to accomplish the end
desired, not from its effects on a particular
case. 70The essential basis for the exercise of
power, and not a mere incidental result arising
from its exertion, is the criterion by which the
validity of a statute is to be
71
measured.  chanrobles virtual law library
II. We now pass on the second assignment of
error, in support of which the Union argued that
the decision of the trial court ordering the Union
to pay P500 for attorney's fees directly
contravenes Section 24 of Republic Act No.
875, for the instant action involves an industrial
dispute wherein the Union was a party, and
said Union merely acted in the exercise of its
rights under the union shop provision of its
existing collective bargaining contract with the
Company; that said order also contravenes
Article 2208 of the Civil Code; that,
furthermore, Appellee was never actually
dismissed by the defendant Company and did
not therefore suffer any damage at
all . 72chanrobles virtual law library
In refuting appellant Union's arguments,
Appellee claimed that in the instant case there
was really no industrial dispute involved in the
attempt to compel Appellee to maintain its
membership in the union under pain of
dismissal, and that the Union, by its act,
inflicted intentional harm on Appellee; that
since Appellee was compelled to institute an
action to protect his right to work, appellant
could legally be ordered to pay attorney's fees
under Articles 1704 and 2208 of the Civil
Code. 73chanrobles virtual law library
The second paragraph of Section 24 of
Republic Act No. 875 which is relied upon by
appellant provides that:
No suit, action or other proceedings shall be
maintainable in any court against a labor
organization or any officer or member thereof
for any act done by or on behalf of such
organization in furtherance of an industrial
dispute to which it is a party, on the ground
only that such act induces some other person
to break a contract of employment or that it is
in restraint of trade or interferes with the trade,
business or employment of some other person
or with the right of some other person to
dispose of his capital or labor. (Emphasis
supplied)
That there was a labor dispute in the instant
case cannot be disputed for appellant sought
the discharge of respondent by virtue of the
closed shop agreement and under Section 2 (j)
of Republic Act No. 875 a question involving
tenure of employment is included in the term
"labor dispute". 74The discharge or the act of
seeking it is the labor dispute itself. It being the
labor dispute itself, that very same act of the
Union in asking the employer to dismiss
Appellee cannot be "an act done ... in
furtherance of an industrial dispute". The mere
fact that appellant is a labor union does not
necessarily mean that all its acts are in
furtherance of an industrial dispute. 75Appellant
Union, therefore, cannot invoke in its favor
Section 24 of Republic Act No. 875. This case
is not intertwined with any unfair labor practice
case existing at the time when Appellee filed
his complaint before the lower
court.chanroblesvirtualawlibrarychanrobles
virtual law library
Neither does Article 2208 of the Civil Code,
invoked by the Union, serve as its shield. The
article provides that attorney's fees and
expenses of litigation may be awarded "when
the defendant's act or omission has compelled
the plaintiff ... to incur expenses to protect his
interest"; and "in any other case where the
court deems it just and equitable that attorney's
fees and expenses of litigation should be
recovered". In the instant case, it cannot be
gainsaid that appellant Union's act in
demanding Appellee's dismissal caused
Appellee to incur expenses to prevent his being
dismissed from his job. Costs according to
Section 1, Rule 142, of the Rules of Court,
shall be allowed as a matter of course to the
prevailing
party.chanroblesvirtualawlibrarychanrobles
virtual law library
WHEREFORE, the instant appeal is dismissed,
and the decision, dated August 26, 1965, of the
Court of First Instance of Manila, in its Civil
Case No. 58894, appealed from is affirmed,
with costs against appellant Union. It is so
ordered.
Makalintal, C.J, Castro, Teehankee, Barredo,
Makasiar, Antonio, Esguerra, Muñoz Palma
and Aquino, JJ., concur.
 chanrobles virtual law library
 HUMAN RIGHTS PRELIMFULLTEXT CASES
 chanrobles virtual law library
Separate Opinions
FERNANDO, J, concurring:chanrobles virtual
law library
The decision arrived at unanimously by this
Court that Republic Act No. 3350 is free from
the constitutional infirmities imputed to it was
demonstrated in a manner wellnigh conclusive
in the learned, scholarly, and comprehensive
opinion so typical of the efforts of the ponente,
Justice Zaldivar. Like the rest of my brethren, I
concur fully. Considering moreover, the
detailed attention paid to each and every
objection raised as to its validity and the clarity
and persuasiveness with which it was shown to
be devoid of support in authoritative doctrines,
it would appear that the last word has been
written on this particular subject. Nonetheless, I
deem it proper to submit this brief expression
of my views on the transcendent character of
religious freedom 1and its primacy even as
against the claims of protection to labor, 2also
one of the fundamental principles of the
Constitution.chanroblesvirtualawlibrarychanrobl
es virtual law library
1. Religious freedom is identified with the
liberty every individual possesses to worship or
not a Supreme Being, and if a devotee of any
sect, to act in accordance with its creed. Thus
is constitutionally safeguarded, according to
Justice Laurel, that "profession of faith to an
active power that binds and elevates man to
his Creator ...." 3The choice of what a man
wishes to believe in is his and his alone. That is
a domain left untouched, where intrusion is not
allowed, a citadel to which the law is denied
entry, whatever be his thoughts or hopes. In
that sphere, what he wills reigns supreme. The
doctrine to which he pays fealty may for some
be unsupported by evidence, devoid of rational
foundation. No matter. There is no requirement
as to its conformity to what has found
acceptance. It suffices that for him such a
concept holds undisputed sway. That is a
recognition of man's freedom. That for him is
one of the ways of self- realization. It would be
to disregard the dignity that attaches to every
human being to deprive him of such an
attribute. The "fixed star on our constitutional
constellation," to borrow the felicitous phrase of
Justice Jackson, is that no official, not
excluding the highest, has it in his power to
prescribe what shall be orthodox in matters of
conscience - or to mundane affairs, for that
matter.
Gerona v. Secretary of Education 4 speaks
similarly. In the language of its ponente, Justice
Montemayor: "The realm of belief and creed is
infinite and limitless bounded only by one's
imagination and thought. So is the freedom of
belief, including religious belief, limitless and
without bounds. One may believe in most
anything, however strange, bizarre and
unreasonable the same may appear to others,
even heretical when weighed in the scales of
orthodoxy or doctrinal standards." 5There was
this qualification though: "But between the
freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel.
If the exercise of said religious belief clashes
with the established institutions of society and
with the law, then the former must yield and
give way to the latter. The Government steps in
and either restrains said exercise or even
prosecutes the one exercising it." 6It was on
that basis that the daily compulsory flag
ceremony in accordance with a statute 7was
found free from the constitutional objection on
the part of a religious sect, the Jehovah's
Witnesses, whose members alleged that their
participation would be offensive to their
religious beliefs. In a case not dissimilar, West
Virginia State Board of Education v.
Barnette, 8the American Supreme Court
reached a contrary conclusion. Justice
Jackson's eloquent opinion is, for this writer,
highly persuasive. Thus: "The case is made
difficult not because the principles of its
decision are obscure but because the flag
involved is our own. Nevertheless, we apply
the limitations of the Constitution with no fear
that freedom to be intellectually and spiritually
diverse or even contrary will disintegrate the
social organization. To believe that patriotism
will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a
compulsory routine is to make an unflattering
estimate of the appeal of our institutions to free
minds. We can have intellectual individualism
and the rich cultural diversities that we owe to
exceptional minds only at the price of
occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the
State as those we deal with here, the price is
not too great. But freedom to differ is not
limited to things that do not matter much. That
would be a mere shadow of freedom. The test
of its substance is the right to differ as to things
that touch the heart of the existing
order." 9chanrobles virtual law library
There is moreover this ringing affirmation by
Chief Justice Hughes of the primacy of
religious freedom in the forum of conscience
even as against the command of the State
itself: "Much has been said of the paramount
 HUMAN RIGHTS PRELIMFULLTEXT CASES
duty to the state, a duty to be recognized, it is
urged, even though it conflicts with convictions
of duty to God. Undoubtedly that duty to the
state exists within the domain of power, for
government may enforce obedience to laws
regardless of scruples. When one's belief
collides with the power of the state, the latter is
supreme within its sphere and submission or
punishment follows. But, in the forum of
conscience, duty to a moral power higher than
the state has always been maintained. The
reservation of that supreme obligation, as a
matter of principle, would unquestionably be
made by many of our conscientious and law-
abiding citizens. The essence of religion is
belief in a relation to God involving duties
superior to those arising from any human
relation." 10The American Chief Justice spoke
in dissent, it is true, but with him in agreement
were three of the foremost jurists who ever sat
in that Tribunal, Justices Holmes, Brandeis,
and
Stone.chanroblesvirtualawlibrarychanrobles
virtual law library
2. As I view Justice Zaldivar's opinion in that
light, my concurrence, as set forth earlier, is
wholehearted and entire. With such a cardinal
postulate as the basis of our polity, it has a
message that cannot be misread. Thus is
intoned with a reverberating clang, to
paraphrase Cardozo, a fundamental principle
that drowns all weaker sounds. The labored
effort to cast doubt on the validity of the
statutory provision in question is far from
persuasive. It is attended by futility. It is not for
this Court, as I conceive of the judicial function,
to restrict the scope of a preferred
freedom.chanroblesvirtualawlibrarychanrobles
virtual law library
3. There is, however, the question of whether
such an exception possesses an implication
that lessens the effectiveness of state efforts to
protect labor, likewise, as noted,
constitutionally ordained. Such a view, on the
surface, may not be lacking in plausibility, but
upon closer analysis, it cannot stand scrutiny.
Thought must be given to the freedom of
association, likewise an aspect of intellectual
liberty. For the late Professor Howe a
constitutionalist and in his lifetime the
biographer of the great Holmes, it even
partakes of the political theory of pluralistic
sovereignty. So great is the respect for the
autonomy accorded voluntary societies. 11Such
a right implies at the very least that one can
determine for himself whether or not he should
join or refrain from joining a labor organization,
an institutional device for promoting the welfare
of the working man. A closed shop, on the
other hand, is inherently coercive. That is why,
as is unmistakably reflected in our decisions,
the latest of which is Guijarno v. Court of
Industrial Relations, 12it is far from being a
favorite of the law. For a statutory provision
then to further curtail its operation, is precisely
to follow the dictates of sound public
policy.chanroblesvirtualawlibrarychanrobles
virtual law library
The exhaustive and well-researched opinion of
Justice Zaldivar thus is in the mainstream of
constitutional tradition. That, for me, is the
channel to
follow.chanroblesvirtualawlibrarychanrobles
virtual law library
 
Separate Opinions
FERNANDO, J, concurring:
The decision arrived at unanimously by this
Court that Republic Act No. 3350 is free from
the constitutional infirmities imputed to it was
demonstrated in a manner wellnigh conclusive
in the learned, scholarly, and comprehensive
opinion so typical of the efforts of the ponente,
Justice Zaldivar. Like the rest of my brethren, I
concur fully. Considering moreover, the
detailed attention paid to each and every
objection raised as to its validity and the clarity
and persuasiveness with which it was shown to
be devoid of support in authoritative doctrines,
it would appear that the last word has been
written on this particular subject. Nonetheless, I
deem it proper to submit this brief expression
of my views on the transcendent character of
religious freedom 1and its primacy even as
against the claims of protection to labor, 2also
one of the fundamental principles of the
Constitution.
1. Religious freedom is identified with the
liberty every individual possesses to worship or
not a Supreme Being, and if a devotee of any
sect, to act in accordance with its creed. Thus
is constitutionally safeguarded, according to
Justice Laurel, that "profession of faith to an
active power that binds and elevates man to
his Creator ...." 3The choice of what a man
wishes to believe in is his and his alone. That is
a domain left untouched, where intrusion is not
allowed, a citadel to which the law is denied
entry, whatever be his thoughts or hopes. In
that sphere, what he wills reigns supreme. The
doctrine to which he pays fealty may for some
be unsupported by evidence, devoid of rational
foundation. No matter. There is no requirement
as to its conformity to what has found
 HUMAN RIGHTS PRELIMFULLTEXT CASES
acceptance. It suffices that for him such a
concept holds undisputed sway. That is a
recognition of man's freedom. That for him is
one of the ways of self- realization. It would be
to disregard the dignity that attaches to every
human being to deprive him of such an
attribute. The "fixed star on our constitutional
constellation," to borrow the felicitous phrase of
Justice Jackson, is that no official, not
excluding the highest, has it in his power to
prescribe what shall be orthodox in matters of
conscience - or to mundane affairs, for that
matter.
Gerona v. Secretary of Education 4 speaks
similarly. In the language of its ponente, Justice
Montemayor: "The realm of belief and creed is
infinite and limitless bounded only by one's
imagination and thought. So is the freedom of
belief, including religious belief, limitless and
without bounds. One may believe in most
anything, however strange, bizarre and
unreasonable the same may appear to others,
even heretical when weighed in the scales of
orthodoxy or doctrinal standards." 5There was
this qualification though: "But between the
freedom of belief and the exercise of said
belief, there is quite a stretch of road to travel.
If the exercise of said religious belief clashes
with the established institutions of society and
with the law, then the former must yield and
give way to the latter. The Government steps in
and either restrains said exercise or even
prosecutes the one exercising it." 6It was on
that basis that the daily compulsory flag
ceremony in accordance with a statute 7was
found free from the constitutional objection on
the part of a religious sect, the Jehovah's
Witnesses, whose members alleged that their
participation would be offensive to their
religious beliefs. In a case not dissimilar, West
Virginia State Board of Education v.
Barnette, 8the American Supreme Court
reached a contrary conclusion. Justice
Jackson's eloquent opinion is, for this writer,
highly persuasive. Thus: "The case is made
difficult not because the principles of its
decision are obscure but because the flag
involved is our own. Nevertheless, we apply
the limitations of the Constitution with no fear
that freedom to be intellectually and spiritually
diverse or even contrary will disintegrate the
social organization. To believe that patriotism
will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a
compulsory routine is to make an unflattering
estimate of the appeal of our institutions to free
minds. We can have intellectual individualism
and the rich cultural diversities that we owe to
exceptional minds only at the price of
occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the
State as those we deal with here, the price is
not too great. But freedom to differ is not
limited to things that do not matter much. That
would be a mere shadow of freedom. The test
of its substance is the right to differ as to things
that touch the heart of the existing order." 9
There is moreover this ringing affirmation by
Chief Justice Hughes of the primacy of
religious freedom in the forum of conscience
even as against the command of the State
itself: "Much has been said of the paramount
duty to the state, a duty to be recognized, it is
urged, even though it conflicts with convictions
of duty to God. Undoubtedly that duty to the
state exists within the domain of power, for
government may enforce obedience to laws
regardless of scruples. When one's belief
collides with the power of the state, the latter is
supreme within its sphere and submission or
punishment follows. But, in the forum of
conscience, duty to a moral power higher than
the state has always been maintained. The
reservation of that supreme obligation, as a
matter of principle, would unquestionably be
made by many of our conscientious and law-
abiding citizens. The essence of religion is
belief in a relation to God involving duties
superior to those arising from any human
relation." 10The American Chief Justice spoke
in dissent, it is true, but with him in agreement
were three of the foremost jurists who ever sat
in that Tribunal, Justices Holmes, Brandeis,
and Stone.
2. As I view Justice Zaldivar's opinion in that
light, my concurrence, as set forth earlier, is
wholehearted and entire. With such a cardinal
postulate as the basis of our polity, it has a
message that cannot be misread. Thus is
intoned with a reverberating clang, to
paraphrase Cardozo, a fundamental principle
that drowns all weaker sounds. The labored
effort to cast doubt on the validity of the
statutory provision in question is far from
persuasive. It is attended by futility. It is not for
this Court, as I conceive of the judicial function,
to restrict the scope of a preferred freedom.
3. There is, however, the question of whether
such an exception possesses an implication
that lessens the effectiveness of state efforts to
protect labor, likewise, as noted,
constitutionally ordained. Such a view, on the
surface, may not be lacking in plausibility, but
upon closer analysis, it cannot stand scrutiny.
Thought must be given to the freedom of
association, likewise an aspect of intellectual
liberty. For the late Professor Howe a
constitutionalist and in his lifetime the
 HUMAN RIGHTS PRELIMFULLTEXT CASES
biographer of the great Holmes, it even
partakes of the political theory of pluralistic
sovereignty. So great is the respect for the
autonomy accorded voluntary societies. 11Such
a right implies at the very least that one can
determine for himself whether or not he should
join or refrain from joining a labor organization,
an institutional device for promoting the welfare
of the working man. A closed shop, on the
other hand, is inherently coercive. That is why,
as is unmistakably reflected in our decisions,
the latest of which is Guijarno v. Court of
Industrial Relations, 12it is far from being a
favorite of the law. For a statutory provision
then to further curtail its operation, is precisely
to follow the dictates of sound public policy.

The exhaustive and well-researched opinion of

Justice Zaldivar thus is in the mainstream of
constitutional tradition. That, for me, is the
channel to follow.