[G.R. NO.

150877 : May 4, 2006]

ELIDAD KHO and VIOLETA KHO v. HON. ENRICO LANZANAS, Presiding Judge of the RTC of Manila

Culled from the records are the following antecedent facts:

Shun Yih Chemistry Factory (SYCF), a business existing and operating in Taiwan and engaged in the manufacture and
sale of Chin Chun Su Creams/Cosmetics, appointed Young Factor Enterprises in the Philippines, owned and operated
by Quintin Cheng also known as Kho Seng Hiok, as its distributor of Chin Chun Su products in the Philippines for a
term of two years beginning 1978.1 Quintin Cheng registered with the Bureau of Food and Drugs (BFAD) as distributor
of Chin Chun Su products. Quintin Cheng subsequently secured a supplemental registration for Chin Chun Su and
device.2 This supplemental registration was ordered cancelled by the Bureau of Patents, Trademarks and Technology
Transfer3 on the ground of failure of the registrant to file the required affidavit of non-use as required by Section 12 of
Republic Act No. 166, as amended.4

Notwithstanding this cancellation, Quintin Cheng executed on 30 January 1990 an Assignment of a Registered
Trademark5 and a Supplementary Deed of Assignment6 dated 25 November 1991 wherein he sold all his right, title,
interest and goodwill in the trademark Chin Chun Su and device to petitioner Elidad Kho.

In the meantime, animosity arose between SYCF and Quintin Cheng resulting in the termination of their
distributorship agreement on 30 October 1990.7

Consequently, on 30 November 1990, SYCF appointed respondent Summerville General Merchandising, represented
by Ang Tiam Chay and Victor Chua, as its exclusive importer, re-packer and distributor of Chin Chun Su products in
the Philippines8 for a period of five years or until May 2005.

SYCF further executed a Special Power of Attorney dated 11 September 1991 in favor of Summerville General
Merchandising granting it the authority to file complaints against usurpers of Chin Chun Su trademarks/tradename.9

From the foregoing incidents arose several judicial and quasi-judicial proceedings.

1) Civil Case No. Q-91-10926 before the Regional Trial Court (RTC) of Quezon City, Branch 90

On 20 December 1991, Elidad Kho/KEC Laboratory filed a Complaint for Injunction and Damages against Ang Tiam
Chay and Summerville General Merchandising before the RTC of Quezon City, Branch 90, docketed as Civil Case No.
Q-91-10926. Plaintiff therein Elidad Kho/KEC Laboratory sought to enjoin defendants Ang Tiam Chay and Summerville
General Merchandising from using the name Chin Chun Su in their cream products.

On 22 January 1993, a decision in Civil Case No. Q-91-10926 was rendered, the dispositive portion of which provides:
ACCORDINGLY, judgment is hereby rendered:

1. Declaring that plaintiff is not legally authorized to use the trademark "CHIN CHUN SU" and upholding the right of
defendant Summerville General Merchandising & Co. to use said trademark as authorized by Shun Yih Chemistry
Factory of Taiwan;
2. Declaring plaintiff to have the right to use the copyright claim on "OVAL FACIAL CREAM CONTAINER/CASE" by
virtue of Certificate of Copyright Registration No. 3687 issued by the National Library on May 23, 1991;
3. No award of damages;
4. Counsels for plaintiff and defendants are awarded P75,000.00 each as attorney's fees; and cralawlibrary

5. Both parties to pay proportionate fees.10

Both parties appealed the RTC decision to the Court of Appeals, docketed as CA-G.R. CV NO. 48043 entitled, "Elidad
C. Kho, doing business under the style of KEC Cosmetic Laboratory v. Summerville General Merchandising and Co., et
al." In a decision11 dated 22 November 1999, the appellate court affirmed in toto the decision of the trial court.12Elidad
Kho elevated the case to this Court, docketed as G.R. No. 144100. In a resolution dated 28 August 2000, we denied
the petition. We held that:

The issue is who, between petitioner Elidad C. Kho and respondent Summerville General Merchandising and Company
has the better right to use the trademark "Chin Chun Su" on their facial cream product? cralawlibrary

We agree with both the Court of Appeals and the trial court that Summerville General Merchandising and Company
has the better right to use the trademark "Chin Chun Su" on its facial cream product by virtue of the exclusive
importation and distribution rights given to it by Shun Yih Chemistry Factory of Taiwan on November 20, 1990 after
the latter cancelled and terminated on October 30, 1990 its Sole Distributorship Agreement with one Quintin Cheng,
who assigned and transferred his rights under said agreement to petitioner Elidad C. Kho on January 31, 1990.

As correctly held by the Court of Appeals, petitioner Kho is not the author of the trademark "Chin Chun Su" and his
only claim to the use of the trademark is based on the Deed of Agreement executed in his favor by Quintin Cheng. By
virtue thereof, he registered the trademark in his name. The registration was a patent nullity because petitioner is not
the creator of the trademark "Chin Chun Su" and, therefore, has no right to register the same in his name.
Furthermore, the authority of Quintin Cheng to be the sole distributor of Chin Chun Su in the Philippines had already
been terminated by Shun Yih Chemistry of Taiwan. Withal, he had no right to assign or to transfer the same to
petitioner Kho.

WHEREFORE, the instant petition is hereby denied due course.13

2) BFAD Cosmetic Case No. CM-040-91

At the other end of the spectrum, due to the proliferation of fake Chin Chun Su products, Summerville General
Merchandising filed a Complaint14 before the BFAD against KEC Cosmetic Laboratory owned by Elidad Kho.

In a resolution of the BFAD dated 4 February 1992, it ruled that:

WHEREFORE, the brand name clearance of CCS in favor of KEC is recalled and cosmetic registration number DR-
X6113-78 dtd 11/17/78 is TEMPORARILY CANCELLED until KEC applies to change or amend the brand name CCS it is
now using. For this purpose, KEC is hereby ordered to retrieve all locally produced Chin Chun Su Pearl Cream for
relabelling as soon as the amendment of its brand name has been approved by this Bureau with the corresponding
amended Certificate of Registration.

Summerville's application to register (renew or reinstate) CCS Medicated Cream under DR-X6113-78 in the name of
Shun Yih Chemistry Factory is herewith approved for processing at BFAD-Product Services Division.15

3) Criminal Case No. 00-183261 before the RTC of Manila, Branch 1

This is the case filed before the RTC of Manila, Branch 1, entitled, "People of the Philippines v. Elidad and Violeta Kho
and Roger Kho," pursuant to the DOJ Resolution in I.S. No. 00A-02396 and I.S. No. 00B-10973, ordering the filing of
a criminal complaint against Elidad, Roger and Violeta Kho.16

Prior to the filing of Criminal Case No. 00-183261 before the RTC of Manila, Branch 1, on 18 January 2000, Victor
Chua, representing Summerville General Merchandising, filed a Complaint for Unfair Competition, docketed as I.S. No.
00A-02396 entitled, "Summerville General Merchandising, represented by Victor Chua v. Elidad and Violeta Kho,"
before the Office of the City Prosecutor of Manila.

Elidad and Violeta Kho filed their counter-affidavit in the Complaint for Unfair Competition which served as their
countercharge against Ang Tiam Chay and Victor Chua, likewise for Unfair Competition, docketed as I.S. No. OOB-
10973.

On 29 March 2000, the Office of the City Prosecutor granted the consolidation of both I.S. No. 00A-02396 and I.S. No.
00B-10973. On 25 April 2000, Assistant City Prosecutor Rector Macapagal rendered a joint resolution dismissing both
the Complaint and countercharge. This resolution of dismissal was reversed by the review resolution17 dated 31 May
2000 issued by Assistant City Prosecutor Elmer Calledo who directed the filing of an information against Elidad Kho,
Roger Kho and Violeta Kho for violation of Section 168.3(a) in relation to Sections 168 and 170, Republic Act No. 8293
(The Intellectual Property Code).18 On 17 August 2000, Department of Justice (DOJ) Undersecretary Regis Puno issued
a resolution19 dismissing the Petition for Review filed by Elidad and Violeta Kho and upholding the ruling of Assistant
City Prosecutor Calledo, directing the filing of charges against the Khos. Elidad and Violeta Kho filed a motion for
reconsideration, and in a complete turnabout, on 28 September 2001, a resolution20 was issued by then DOJ Secretary
Hernando Perez again dismissing the Complaint and countercharge in I.S. No. 00A-02396 and I.S. No. 00B-10973 for
lack of merit. Summerville General Merchandising accordingly filed a motion for reconsideration of this DOJ resolution
dated 20 September 2001.

In view of the latest DOJ resolution ordering the dismissal of the complaint of Summerville General Merchandising
against the Khos, the RTC of Manila, Branch 1, issued an Order dated 24 October 2001 directing the dismissal of the
Complaint in Criminal Case No. 00-183261.21 Summerville General Merchandising filed with the RTC of Manila, Branch
1, a motion for reconsideration of its Order of dismissal of Criminal Case No. 00-183261. For their part, Elidad and
Violeta Kho also filed with the same court a supplemental motion insisting that the Order dismissing Criminal Case No.
00-183261 cannot be set aside because to do so would, in effect, reinstate the said criminal case and would already
constitute double jeopardy. Acting on these motions, the RTC of Manila, Branch 1, issued an Order dated 21 August
2002 resolving the motions in the following manner:

The foregoing duly established facts indubitably supports accused's contention that a re-filing [o]f the Information
would put them in double jeopardy. As ruled by the Supreme Court in Marcelo v. Court of Appeals, 235 SCRA 39,
upon withdrawal of the Information, which is the logical consequence of the grant of the Motion to Withdraw, there no
longer remained any case to dismiss.

Accordingly, finding merit in the Motion for Reconsideration, the same is hereby granted.

The information against accused is hereby dismissed.

The Clerk of Court is hereby directed to return to the accused the cash bonds posted by the latter for their provisional
liberty upon presentation of the requisite receipts.

The ruling renders the remaining incidents moot and academic.22

Thereafter, on 17 September 2002, the DOJ Secretary, Hernando B. Perez, granted the pending motion of
Summerville General Merchandising for reconsideration of the DOJ resolution23 dated 28 September 2001, which
dismissed the Complaint of movant Summerville General Merchandising in I.S. No. 00A-02396, and accordingly issued
another resolution vacating the questioned 28 September 2001 resolution and directing the City Prosecutor of Manila
to continue with the criminal prosecution of the Khos for Unfair Competition.
Elidad and Violeta Kho filed a motion for reconsideration of the resolution dated 17 September 2002 before the DOJ.
The DOJ,24 thru the new Secretary Simeon A. Datumanong denied that double jeopardy lies, in a resolution dated 17
July 2003, declared that:

After an evaluation of the record, we resolve to deny the motion for reconsideration. For double jeopardy to attach,
the following requirements must be present: (1) upon a valid indictment; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was convicted, acquitted, or the
case was dismissed or otherwise terminated without the express consent of the accused. (People v. Court of Appeals,
308 SCRA 687). In the instant case, it appears that the case was terminated with the express consent of the
respondent, as the criminal case was dismissed upon the express application of the accused. Her action in having the
case dismissed constitutes a waiver of her constitutional prerogative against double jeopardy as she thereby
prevented the court from proceeding to trial on the merits and rendering a judgment of conviction against her.25

At odds with the final DOJ resolution, the RTC of Manila, Branch 1, handling Criminal Case No. 00-183261, held in its
Order dated 2 April 2003 that:

Considering the tenors of the orders of dismissal, whatever maybe the merits of the Motion for Reconsideration,
revival of the case is now barred by the impregnable wall of double jeopardy.

ACCORDINGLY, the Motion for Reconsideration dated September 10, 2002 filed by the private prosecutor and subject
of the Motion to Resolve is hereby denied with finality.

The Clerk of Court is hereby directed to return to the accused the cash bond posted by them for their provisional
liberty upon presentation of the required receipts.26

Thus, Summerville General Merchandising raised its case to the Court of Appeals, docketed as CA-G.R. SP No. 77180,
assailing the Order dated 24 October 2001 of the RTC of Manila, Branch 1, dismissing Criminal Case No. 00-183261,
as well as the Orders dated 21 August 2002 and 2 April 2003 of the same court affirming its previous order of
dismissal.

In a decision of the Court of Appeals dated 26 May 2004 in CA-G.R. SP No. 77180,27 the Court denied due course to
the petition of Summerville General Merchandising and affirmed the ruling of the trial court that, indeed, double
jeopardy has set in.

The decision of the Court of Appeals in CA-G.R. SP No. 77180 is now the subject of a Petition for Review before this
Court, docketed as G.R. No. 163741 entitled, Summerville General Merchandising and Co., Inc. v. Elidad Kho."28

4) Search Warrant No. 99-1520 before the RTC of Manila, Branch 7

Shortly before instituting Criminal Case No. 00-183261 against the Khos, or on 7 January 2000, Summerville General
Merchandising applied for the issuance of a search warrant against the Spouses Elidad and Violeta Kho and Roger
Kho, since they persisted in manufacturing and selling Chin Chun Su products despite the BFAD order directing them
to refrain from doing so. The application was docketed as Search Warrant No. 99-1520 before the RTC of Manila,
Branch 7, which was presided over by respondent herein, Judge Enrico A. Lanzanas. A hearing on the application was
held on 10 January 200029 and the search warrant was issued against Elidad, Violeta and Roger Kho on the same
day.30Its enforcement led to the seizure of several Chin Chun Su products.31  ςηαñrοblεš  Î½Î¹r† Ï…αl  lαω  lιbrαrà ¿
On 17 January 2000, Elidad, Violeta and Roger Kho filed before the RTC of Manila, Branch 7, a motion to quash the
search warrant and for the return of the items unlawfully seized. The motion was opposed by Summerville General
Merchandising.

In an Order32 dated 3 April 2000, the RTC of Manila, Branch 7, denied Elidad and Violeta Kho's motion to quash and to
return the seized articles for lack of merit.33 Elidad and Violeta Kho filed a motion for reconsideration and motion to
transfer the proceedings in RTC of Manila, Branch 7, to RTC of Manila, Branch 1, citing Supreme Court Administrative
Order 113-9534 designating the RTC of Manila, Branch 1, as an Intellectual Property Court. The RTC of Manila, Branch
7, denied these motions in an Order dated 5 June 2000,35explaining that:

Anent the Motion to Compel this Branch to transfer the case to Branch 1 of this Court, suffice it to say that the cases
for violation of Arts. 188 and 189 of the Revised Penal Code (now under the Intellectual Property Law) are those that
are already filed in court after the proper preliminary investigation and not cases for application for search warrant
involving probable violation of said law. Supreme Court Administrative Circular No. 113-95 itself designates the
alluded court or branch thereof to try and decide which clearly excludes cases/applications for search warrant which
obviously does not involve trying and deciding case for violation of the Intellectual Property law.

On respondent's Motion for Reconsideration, the Court finds their arguments therein a rehash of the issues and
arguments raised in their Motion to Quash.

WHEREFORE, for lack of merit, respondents' Motion for Reconsideration and Motion to Transfer, are hereby DENIED.36

Elidad and Violeta Kho filed a Petition for Certiorari and Preliminary Mandatory Injunction,37 docketed as CA-G.R. SP
No. 60084, before the Court of Appeals questioning the aforementioned Orders of the RTC of Manila, Branch 7. A
decision dated 6 August 200138 was rendered by the Court of Appeals denying the petition. It upheld Search Warrant
No. 99-1520 as having been validly issued and properly executed and, thus, there is no basis for the return of the
goods seized. A motion for reconsideration filed by the Khos was denied by the Court of Appeals in an Order dated 16
November 2001.39

Elidad and Violeta Kho filed a supplement to their Motion for Reconsideration dated 20 November 200140 before the
Court of Appeals in CA-G.R. SP No. 60084, reiterating their prayer for the quashal of Search Warrant No. 99-1520 and
the return of the seized items. The Court of Appeals, in a resolution dated 4 December 2001,41 merely noted the
motion in view of its earlier resolution rendered on 16 November 2001 already denying Elidad and Violeta Kho's
Motion for Reconsideration.

Pained by the decisions and orders of the trial court and appellate court, petitioners Elidad and Violeta Kho filed the
present petition praying that the decision of the Court of Appeals in CA-G.R. SP No. 60084 dated 6 August 2001 be
reversed and set aside, and a new decision be issued granting the quashal of Search Warrant No. 99-1520 and
ordering the return of the items unlawfully seized.42

In their Memorandum, petitioners raise the following issues for resolution:

WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISREGARDING THE WITHDRAWAL OF THE INFORMATION FOR

UNFAIR COMPETITION AGAINST THE PETITIONERS IN BRANCH 1 OF RTC-MANILA AS A RESULT OF THE RESOLUTION

OF THE DEPARTMENT OF JUSTICE FINDING NO PROBABLE CAUSE.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN FINDING THAT PROBABLE CAUSE EXISTED AGAINST THE

PETITIONERS FOR THE ISSUANCE OF SEARCH WARRANT NO. 99-1520.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT BRANCH 7 OF THE REGIONAL TRIAL COURT OF

MANILA HAD JURISDICTION TO ISSUE SEARCH WARRANT NO. 99-1520.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN RULING THAT SEARCH WARRANT NO. 99-1520 WAS

LAWFULLY EXECUTED.

WHETHER OR NOT THE COURT OF APPEALS ERRED IN FINDING THAT NO GRAVE ABUSE OF DISCRETION WAS

COMMITTED BY HONORABLE JUDGE ENRICO LANZANAS IN NOT ORDERING THE RETURN OF THE ITEMS SEIZED

UNDER SEARCH WARRANT NO. 99-1520.43

The petition is devoid of merit.

As to the first issue, it must be noted that the dismissal of Criminal Case No. 00-183261 by the RTC of Manila, Branch
1, was initially by virtue of the resolution of the DOJ dated 28 September 200144 ordering the dismissal of the criminal
case for unfair competition.

This order of dismissal, however, was again set aside by the DOJ in its resolution dated 17 September 200245 directing
that appropriate information for Unfair Competition be filed against the Khos. The motion for reconsideration of Elidad
and Violeta Kho was denied by the DOJ in its resolution dated 17 July 2003.46 This is the latest existing resolution of
the DOJ on the matter, dated 17 July 2003, which affirmed the resolution of the then DOJ Secretary Hernando B.
Perez directing the City Prosecutor of Manila to file the appropriate information against Elidad and Violeta Kho for
Unfair Competition as defined and penalized under Section 168.3(a), in relation to Sections 168 and 170 of Rep. Act
No. 8293 or The Intellectual Property Code of the Philippines. Therefore, at the time of the dismissal of Criminal Case
No. 00-183261 by the RTC of Manila, Branch 1, on 24 October 2001, the DOJ resolution on I.S. No. 00A-02396 on
which Criminal Case No. 00-183261 is based has not been written finis as yet.

Taking into consideration these circumstances, the Court of Appeals did not err in affirming the Order of the RTC of
Manila, Branch 7, denying the motion to quash filed by the herein petitioners because, subsequently, the DOJ still
ordered the filing of charges against Elidad and Violeta Kho.

As to whether the RTC of Manila, Branch 1, properly dismissed the criminal case against the Khos despite the
resolution of the DOJ ordering their criminal prosecution, we cannot dwell more on the issue because it is already the
subject of G.R. No. 163741 before another division of this Court.

Issues two, three and four, on the other hand, boil down to the central issue of whether or not the Court of Appeals
erred in upholding the RTC of Manila, Branch 7, in its findings of probable cause to issue a search warrant. Also
resting on how we shall resolve the foregoing issue is the fifth and last issue in the Petition at bar which questions the
refusal by both the Court of Appeals and the RTC of Manila, Branch 7, to return the seized items.

The issuance of Search Warrants is governed by Rule 126 of the Revised Rules of Court reproduced below:
SECTION 1. Search warrant defined. - A search warrant is an order in writing issued in the name of the People of the
Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court.

SEC. 2. Court where application for search warrant shall be filed. - An application for search warrant shall be filed with
the following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial region where the crime was

committed if the place of the commission of the crime is known, or any court within the judicial region where the

warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the
criminal action is pending.

SEC. 3. Personal property to be seized. - A search warrant may be issued for the search and seizure of personal
property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.

SEC. 4. Requisites for issuing search warrant. - A search warrant shall not issue except upon probable cause in
connection with one specific offense 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 things to be seized which may be anywhere in the Philippines.

SEC.5. Examination of complainant; record. - The judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements together with the
affidavits submitted.

SEC. 6. Issuance and form of search warrant. - If the judge is satisfied of the existence of facts upon which the
application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must
be substantially in the form prescribed by these Rules.

What constitutes "probable cause" is well settled. In Microsoft Corporation v. Maxicorp, Inc.,47 we defined probable
cause as follows:

Probable cause means "such reasons, supported by facts and circumstances as will warrant a cautious man in the
belief that his action and the means taken in prosecuting it are legally just and proper." Thus, probable cause for a
search warrant requires such facts and circumstances that would lead a reasonably prudent man to believe that an
offense has been committed and the objects sought in connection with that offense are in the place to be searched.

The determination of probable cause does not call for the application of rules and standards of proof that a judgment
of conviction requires after trial on the merits. As implied by the words themselves, "probable cause" is concerned
with probability, not absolute or even moral certainty. The prosecution need not present at this stage proof beyond
reasonable doubt. The standards of judgment are those of a reasonably prudent man, not the exacting calibrations of
a judge after a full-blown trial.

No law or rule states that probable cause requires a specific kind of evidence. No formula or fixed rule for its
determination exists. Probable cause is determined in the light of conditions obtaining in a given situation. xxx

In Columbia Pictures, Inc. v. Court of Appeals,48 we explained further that:

Although the term "probable cause" has been said to have a well-defined meaning in the law, the term is exceedingly
difficult to define, in this case, with any degree of precision; indeed, no definition of it which would justify the issuance
of a search warrant can be formulated which would cover every state of facts which might arise, and no formula or
standard, or hard and fast rule, may be laid down which may be applied to the facts of every situation. As to what
acts constitute probable cause seem incapable of definition. There is, of necessity, no exact test.

At best, the term "probable cause" has been understood to mean a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is
guilty of the offense with which he is charged; or the existence of such facts and circumstances as would excite an
honest belief in a reasonable mind acting on all the facts and circumstances within the knowledge of the magistrate
that the charge made by the applicant for the warrant is true.

Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of
the existence of probable cause is not concerned with the question of whether the offense charged has been or is
being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable
grounds for his belief. The requirement is less than certainty or proof, but more than suspicion or possibility.

In Philippine jurisprudence, probable cause has been uniformly defined as such facts and circumstances which would
lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched. It being the duty of the issuing officer to
issue, or refuse to issue, the warrant as soon as practicable after the application therefor is filed, the facts warranting
the conclusion of probable cause must be assessed at the time of such judicial determination by necessarily using
legal standards then set forth in law and jurisprudence, and not those that have yet to be crafted thereafter.

We also declared in People v. Chiu,49 citing Malaloan v. Court of Appeals,50 that a search warrant is merely a judicial
process designed by the Rules to respond only to an incident in the main case, if one has already been instituted, or in
anticipation thereof.

It bears repeating that the proceedings before the RTC of Manila, Branch 7, was solely for the issuance of Search
Warrant No. 99-1520, while the main case against Elidad and Violeta Kho for violation of The Intellectual Property
Code was instituted only later on as Criminal Case No. 00-183261 before the RTC of Manila, Branch 1. What is before
us in the Petition at bar is the validity of the search warrant issued in the proceedings in Search Warrant No. 99-1520.

A perspicacious examination of the records reveal that the RTC of Manila, Branch 7, followed the prescribed procedure
for the issuance of Search Warrant No. 99-1520, namely, (1) the examination under oath or affirmation of the
Complainant and his witnesses and, in this case, Judge Enrico A. Lanzanas personally examined complainant-
policewoman SPO4 Nedita Alvario Balagbis, and Mr. Victor Chua, the representative/officer of Summerville General
Merchandising, at the hearing on the application for Search Warrant No. 99-1520 held on 10 January 2000; (2) an
examination personally conducted by then Presiding Judge Lanzanas, in the form of searching questions and answers,
in writing and under oath, of the complainant and witnesses on facts personally known to them; and (3) the taking of
sworn statements, together with the affidavits submitted, which were duly attached to the records.51
In determining probable cause in the issuance of a search warrant, the oath required must refer to the truth of the
facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause.52

From the affidavit dated 7 January 2000 of SPO4 Nedita Balagbis, in support of the application for search warrant, she
stated that Summerville General Merchandising represented by Mr. Victor Chua sought the assistance of their police
station in connection with the proliferation of fake Chin Chun Su products. With Victor Chua, they made a surveillance
of two places, namely 2407 Topacio Street and 2412 Raymundo Street both in San Andres, Manila. Through this, they
were able to verify that plastic containers were being labeled with Chin Chun Su stickers filled with cream at 2407
Topacio Street. On the other hand, in the affidavit dated 7 January 2000 of Victor Chua, he stated that Summerville
General Merchandising, being the exclusive importer, distributor and dealer of Chin Chun Su products received reliable
information that persons going by the name of Elidad, Violeta and Roger Kho were engaged in the illegal manufacture
and sale of these products. From the surveillance conducted with the help of SPO4 Balagbis, they saw a tricycle full of
containers taken to a house at 2412 Raymundo Street, San Andres, Manila. It was at this address that Chin Chun Su
stickers were being affixed. The containers were thereafter taken to 2407 Topacio Street to be filled with the cream
product.

Clearly, probable cause existed for the issuance of the warrant as shown by the affidavits of the above affiants who
had personal knowledge of facts indicating that an offense involving violation of intellectual property rights was being
committed and that the objects sought in connection with the offense are in the place sought to be searched. The
surveillance conducted by SPO4 Nedita Balagbis on the basis of reliable information that Elidad, Violeta and Roger Kho
were engaged in the illegal manufacture and sale of fake Chin Chun Su products enabled her to gain personal
knowledge of the illegal activities of the Khos.53 This fact was sufficient justification for the examining judge, in this
case Judge Lanzanas, to conclude that there was probable cause for the issuance of the search warrant.

At the hearing conducted by Judge Lanzanas, SPO4 Nedita Balagbis and Victor Chua testified on the affidavits they
separately executed, and essentially stated therein upon inquiry by Judge Lanzanas that indeed several fake Chin
Chun Su products were loaded to a tricycle and brought to a warehouse in Topacio Street.

In People v. Tee,54 this Court held that:

It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrate's
determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as
long as there was substantial basis for that determination. Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to
believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in
the place sought to be searched.

We cannot find any irregularity or abuse of discretion on the part of Judge Lanzanas for issuing the assailed search
warrant. On the contrary, we find that he had complied with the procedural and substantive requirements for issuing a
search warrant. We are, therefore, bound to respect his finding of probable cause for issuing Search Warrant No. 99-
1520.

After declaring that Search Warrant No. 99-1520 was validly issued by the RTC of Manila, Branch 7, then there is no
reason for us to order the return of the articles seized by virtue thereof.

WHEREFORE, the Decision of the Court of Appeals dated 6 August 2001 and Resolution dated 16 November 2001,
denying the quashal of Search Warrant No. 99-1520 and the return of the seized items, are hereby AFFIRMED. Costs
against petitioners.
 [G.R. No. 132389. November 19, 2002.]
PEDRO CUPCUPIN, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

This is a petition for review on certiorari, seeking to set aside the November 27, 1997 decision of the Court of
Appeals, 1 in CA-G.R. CR No. 17334, which affirmed with modification the November 18, 1994 decision 2 of the
Regional Trial Court of Malabon, Branch 170, wherein petitioner Pedro Cupcupin was found guilty of the crimes of
violation of Section 16, Article III, Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972, as
amended, and of violation of Section 1, Presidential Decree 1866, otherwise known as the Unlawful Possession of
Firearms and Ammunition, in Criminal Case No. 13374-MN and Criminal Case No. 13375-MN 5784, respectively.

The Informations filed against petitioner read: chanrob1es virtual 1aw library

In Criminal Case No. 13374-MN for violation of Section 16, Article III, Republic Act 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended: chanrob1es virtua1 1aw 1ibrary

That on 05 March 1993 in Malabon and within the jurisdiction of this Honorable Court, the above-named accused did
then and there wilfully, unlawfully and feloniously possess approximately 38.2085 grams of methamphetamine
hydrochloride, popularly known as "shabu", a regulated drug, without the corresponding license or prescription
therefor.

CONTRARY TO LAW. 3 

In Criminal Case No. 13375-MN for violation of Section 1, Presidential Decree 1866, otherwise known as the Unlawful
Possession of Firearms and Ammunition: chanrob1es virtual 1aw library

That on 05 March 1993 in Malabon and within the jurisdiction of this Honorable Court, the above-named accused did
then and there wilfully, unlawfully and feloniously have custody, control and possession of: chanrob1es virtual 1aw library

one (1) M16 Baby Armalite rifle with defaced serial no. and fully loaded magazine
one (1) Browning pistol without serial no. with fully loaded magazine
two (2) empty magazine for Armalite without lawful authority therefore.

CONTRARY TO LAW. 4 

Upon arraignment on August 5, 1993, petitioner pleaded not guilty. Trial on the merits thereafter ensued. 5 

The version of the prosecution can be synthesized as follows: Based on a confidential information that petitioner,
Pedro Cupcupin is engaged in selling methamphetamine hydrochloride (shabu), and in possession of firearms and
ammunitions without the necessary license, NBI Agent Timoteo Rejano of the National Capital Region, conducted a
surveillance on the vicinity of petitioner’s residence at Int. David Santos, C. Arellano Streets, Malabon, Metro Manila.
After confirming said confidential information, Agent Rejano applied for the issuance of search warrants before Judge
Romeo J. Callejo, 6 of the Regional Trial Court of Manila, Branch 49. 7 

On March 3, 1993, Judge Romeo J. Callejo issued the following search warrants: chanrob1es virtual 1aw library

PEOPLE OF THE PHILIPPINES, Plaintiff, SEARCH WARRANT NO. 56-93

- versus - FOR: VIOLATION OF SECTION 16
PEDRO CUPCUPIN ARTICLE III, of REPUBLIC

Int. David Santos, C. Arellano ACT 6425, AS AMENDED

Street, Malabon, Metro
Manila

Accused.
x ------------------------------------- x
SEARCH WARRANT

TO ANY PEACE OFFICER: chanrob1es virtual 1aw library

Upon sufficient showing of the existence of probable cause, after determination personally by the Judge on
examination under oath of the applicant and his witness by means of searching questions and answers thereto, based
on the facts personally known to them that Respondent Pedro Cupcupin residing at said address, had been and still is
using the said premises, for the possession and/or use of regulated substance known as methamphetamine
hydrochloride (SHABU) in violation of section 16 of Republic Act 6425, as amended.

WHEREFORE, the Court commands you to conduct an immediate search, at any time of the day or night, including
Saturdays and Sundays, on the premises at the above address, including the rooms located therein, and seize the
following: jgc:chanrobles.com.ph

"UNDETERMINED QUANTITY OF METAMPHETAMINE HYDROCHLORIDE (SHABU)" and to bring the same before the
Court for proper disposition in accordance with law. You shall make a return of the warrant to the Court within ten
(10) days from today. SO ORDERED. 8 

PEOPLE OF THE PHILIPPINES

Plaintiff, SEARCH WARRANT NO. 57-93
- versus -
FOR: VIOLATION OF
PEDRO CUPCUPIN PRESIDENTIAL DECREE 1866

Int. David Santos, C. Arellano (SECTION 1)

Street, Malabon, Metro
Manila

Accused.
x ------------------------------------- x

SEARCH WARRANT

TO ANY PEACE OFFICER: chanrob1es virtual 1aw library

Upon sufficient showing of the existence of probable cause, after determination personally by the Judge on
examination under oath of the applicant and his witness by means of searching questions, and answers thereto, based
on the facts personally known to them, that Accused Pedro Cupcupin residing at said address, had been and still in
possession of assorted firearms herein below listed, without the requisite license therefore, in violation of Presidential
Decree No. 1866.

WHEREFORE, the Court commands you to conduct an immediate search, at any time of the day and night, including
Saturdays, on the premises at the above address including the rooms located therein and seize the following: chanrob1es virtual 1aw library

a) Two (2) .45 cal. pistols;

b) One (1) .38 cal. revolver;
c) One (1) .9 mm. pistol;
d) Two (2) M-16 armalite rifles; and
e) One (1) .22 cal. pistol

and bring the same before the Court for proper disposition in accordance with law.

You shall make a return of the warrant to the Court within ten (10) days from today. SO ORDERED.

On March 5, 1993, at about 7 a.m., the team composed of Supervising Agent Eduard Villarta, NBI agents Timoteo
Rejano, Ruel Lasala, Narciso Peña, Jr., Joel Consador, Ceres Delapa-Cabrera, Ernesto Cabrera and Special
Investigators Arthur Oliveros and Ariel Nuñez and SPO1 Olazo, raided the house of petitioner located at Int. David
Santos and C. Arellano Streets, Malabon, Metro Manila, 10 which consisted of a 2-storey house made up of strong
materials and a workshop room at the ground floor made up of light materials. 11 

The NBI agents presented the search warrants and introduced themselves to the petitioner and his wife, Adelfa
Cupcupin. Upon their request, the NBI agents waited for petitioner’s mother, Iluminada Cupcupin and in their
presence, the team searched the bedroom at the second floor and found a fully-loaded M16 armalite rifle underneath
the bed. They likewise found a semi-automatic browning pistol and two empty magazines of armalite inside a drawer
of a table found in the same bedroom. Agents Rejano and Consador inscribed their respective initials and date on the
handle of the rifle and the pistol. 12 An Inventory of the items seized was thereafter signed by Adelfa Cupcupin,
Elumina Cupcupin, and the petitioner. 13 

Thereafter, the team searched the workshop room, again in the presence of petitioner, his wife, and his mother. 14
Seized from petitioner’s workshop room were the following: "1) nine (9) plastic packs of white crystalline substance
found inside a box [of] ‘ETERNITY’; 2) one improvised water pipe; 3) one (1) improvised burner; 4) one (1) weighing
scale marked `TAVITA’; 5) three (3) small tooters; 6) one pack of plastic pouches; 7) one electric resealer; 8)
aluminum foils; 9) five (5) assorted magazines for pistols; 10) one (1) rifle grenade; 11) assorted bullets for M16, .45
cal and 9 mm." 15 An inventory of the items seized was prepared and thereafter signed and acknowledged by Adelfa
Cupcupin, Elumina Cupcupin, and the petitioner. 16 

Upon examination by NBI Forensic Chemist Aida R. Viloria-Magsipoc, the nine plastic packs of white crystalline
substance seized from the workshop room of petitioner, turned out to be 38.0201 grams of Methamphetamine
Hydrochloride, popularly known as shabu. 17 

Petitioner, on the other hand, raised the defense of frame-up. He alleged that between 6:00 to 7:00 in the morning of
March 5, 1993, while he was resting at the ground floor of his house in the company of his wife, Adelfa Cupcupin and
their two children, the team of NBI agents arrived. They searched his house and detained him and his family at the
ground floor. He denied ownership and possession of the illegal items allegedly seized from his house but admitted
ownership of the automatic browning pistol found in his bedroom. He produced a Certification from the PNP Firearms
and Explosive Division showing that said browning, cal. 9mm pistol with Serial No. 245PZ84617 is registered in his
name. 18 After the search and while in handcuffs, he was forced to sign some documents which turned out to be an
inventory receipt and a search warrant. 19 

Petitioner further declared that the charges against him are purely harassment because in 1991 he had been
previously charged, but was subsequently acquitted of illegal possession of regulated drugs and firearms in Criminal
Case Nos. 10108-MN and 10109-MN, respectively, before Branch 72, of the Regional Trial Court of Malabon. 20 

On November 18, 1994, a decision was rendered by the trial court convicting petitioner, to wit: chanrob1es virtual 1aw library

WHEREFORE, in view of all the foregoing, judgment is hereby rendered as follows: chanrob1es virtual 1aw library

1. In Criminal Case No. 13374, finding accused Pedro Cucupin guilty beyond reasonable doubt of Violation of Section
16, Article III, Republic Act 6425, as further amended by Republic Act 7659 and considering the quantity of the
Methamphetamine Hydrochloride involved in this case, hereby sentences him to suffer an indeterminate penalty of
One (1) Year, Eight (8) Months and Twenty (20) Days as minimum, to Four (4) Years, Two (2) Months and One (1)
Day as maximum, & to pay the cost;

2. In Criminal Case No. 13375, finding accused Pedro Cupcupin guilty beyond reasonable doubt of Violation of
Presidential Decree No. 1866, hereby sentences him to suffer an indeterminate penalty of Seventeen (17) Years, Four
(4) Months and One (1) Day as minimum, to Eighteen (18) Years, Eight (8) Months and One (1) Day as maximum,
and to pay the cost of this suit.

The unlicensed M16 baby armalite, magazines, assorted ammunitions, methamphetamine hydrochloride and the
paraphernalia presented as evidence are all forfeited in favor of the government, and the Branch Clerk of Court is
directed to turn over the same to the PNP Firearms and Explosive Office and Dangerous Drugs Board for proper
disposition.

The 9mm automatic pistol is hereby ordered returned to accused Pedro Cupcupin. SO ORDERED. 21 

On appeal, the judgment of conviction was affirmed, but modified as to the penalties, to wit: chanrob1es virtual 1aw library

WHEREFORE, the decision subject of this appeal is AFFIRMED with modifications as to the penalties imposed: chanrob1es virtual 1aw library

(1) In Criminal Case No. 13374-MN for violation of R.A. No. 6425, Accused-appellant is sentenced to suffer the
indeterminate penalty of imprisonment of Six (6) Months of arresto mayor, as minimum, to Four (4) Years and Two
(2) Months of prision correccional, as minimum.

(2) In Criminal Case No. 13375-MN for violation of P.D. No. 1866, Accused-appellant shall suffer an indeterminate
penalty of imprisonment of Six (6) Years of prision correccional, as minimum, to Eight (8) Years of prision mayor, as
maximum, and to pay a fine of thirty thousand pesos (P30,000.00). SO ORDERED. 22 

Hence, the instant petition raising the following errors: chanrob1es virtual 1aw library

I
THE HON. COURT OF APPEALS SERIOUSLY ERRED IN NOT HOLDING THAT THE SEARCH WARRANTS WERE LEGALLY
 AND CONSTITUTIONALLY INFIRM, INVALID AND VOID, THEY NOT HAVING COMPLIED WITH THE INDISPENSABLE
REQUIREMENTS FOR THE ISSUANCE THEREOF.

II
THE HON. COURT OF APPEALS GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE WITNESSES OF THE
PROSECUTION DESPITE THE FACT THAT THE WITNESSES, WHO WERE NBI AGENTS, WERE ACTUATED WITH MALICE,
IMPROPER MOTIVE AND COMMITTED IRREGULAR ACTS IN SECURING AND IMPLEMENTING THE AFOREMENTIONED
SEARCH WARRANTS.

III
THE HON. COURT OF APPEALS GRAVELY ERRED IN NOT GIVING WEIGHT AND PROBATIVE VALUE TO THE EARLIER
JOINT DECISION OF THE TRIAL COURT ACQUITTING THE ACCUSED FOR THE OFFENSES OF VIOLATION OF SEC. 15
OF THE DANGEROUS DRUGS ACT AND VIOLATION OF P.D. 1866, WHICH ARE THE SAME OFFENSES NOW SUBJECT OF
THE INSTANT CASES AND WHEREIN THE PETITIONER HAD BEEN CONVICTED BY THE TRIAL COURT AND AFFIRMED
BY THE HON. COURT OF APPEALS.

IV
THE HON. COURT OF APPEALS SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE
OFFENSES CHARGED, THE SAME NOT HAVING BEEN PROVED BEYOND REASONABLE DOUBT. 23 

Petitioner contends that the items allegedly seized from his residence are inadmissible as evidence because the search
warrants issued against him failed to comply with the constitutional and statutory requirements for the issuance of a
valid search warrant. Specifically, petitioner claims that said warrants were defective on the grounds that: (1) NBI
Agent Timoteo Rejano who applied for the issuance thereof had no personal knowledge of the facts on which the
warrants were based; and (2) subject warrants failed to particularly describe the place to be searched because there
are two houses located in the address stated in the said warrants.

The contentions are without merit.

Sections 2 and 3 (2), Article III, of the Constitution state: chanrob1es virtual 1aw library

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.

SEC. 3. . . .
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.

Under Sections 4 and 5, Rule 126, of the Revised Rules on Criminal Procedure, the requisites for the issuance of a
valid search warrant are as follows: chanrob1es virtual 1aw library

SEC. 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in
connection with one specific offense to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the Philippines. (3a)

SEC. 5. Examination of complainant, record. — The judge must, before issuing the warrant, personally examine in the
form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements, together with the
affidavits submitted. (4a)

In determining probable cause in the issuance of a search warrant, the oath required must refer to the truth of the
facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual, making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere
suspicion or belief. 24 

In the case at bar, NBI Agent Timoteo Rejano who applied for the issuance of Search Warrant Nos. 56-93 and 57-93,
had personal knowledge of the circumstances on which the warrants were based. Admittedly, Rejano’s knowledge of
petitioner’s illegal possession of firearms and prohibited drugs came from a confidential informant, and therefore,
initially hearsay. Nevertheless, the surveillance and investigation he conducted on the basis of said confidential
information enabled him to gain personal knowledge of the illegal activities of petitioner. 25 Hence, his testimony was
sufficient justification for the examining judge to conclude that there was probable cause for the issuance of a search
warrant.

Contrary to the claim of petitioner, the records show that there is only one house located in the address to be
searched. The residence of petitioner consisted of a structure with two floors, made up of strong materials and a
workshop room at the ground floor made up of light materials. The unrebutted testimony of the prosecution witnesses
reveal that inside the main house is an alley connected to the door of the workshop room. Pertinent portion of the
testimony of NBI Agent Consador, one of the members of the raiding team, reads: chanrob1es virtual 1aw library

Court (witness)

Q Where is the house of the accused located?

A It is located at the corner of Arellano St., Your Honor.
Q Malabon?
A Yes, Your Honor.
Q Is there a number in the house of the accused?
A I cannot recall, Your Honor.
Q How many structures are there in the premises of Pedro Cupcupin?
A As I remember, there are two structures but it looks like they are adjacent, one big and the other one like nipa hut
but they are adjacent, Your Honor.
Q What do you mean adjacent?
A The small structure is connected to the big structure, Your Honor.
Q When you say connected, will you tell the court what do you mean.
A When you enter the structure, there is a door that can be opened at the small structure, Your Honor.
Q Without going outside of the house?
A Yes, Your Honor.
Q Do we understand from you that there is a connecting alley inside the bigger structure going to the small structure?
A Yes, Your Honor.
Q These two structures belong to Pedro Cupcupin?
A Yes, Your Honor.
Likewise relevant is the testimony of Agent Rejano, thus: chanrob1es virtual 1aw library

A We go back now to the two buildings which you said in your own opinion is only one. I am showing to you the
picture which was taken by your photographer, is this the scenario of the place where [the] two buildings depicted in
the picture marked as Exhibit "N" ? A two stor[e]y house is depicted at the left hand portion of Exhibit "M" that would
be the house you are alluding to as the house which you first entered the second floor despite the fact that you will
pass the ground floor that is the building you are alluding in that statement of yours or testimony of yours a while
ago?

A Yes, sir.
Q How about a structure depicted at the right hand portion in between the two vehicles, is it part also of the residence
of Cupcupin?
A It is part of the residence and while inside the edifice there is no divider, sir.
Q You will agree with me Mr. witness that despite the fact that there is no division, two vehicles were parked in
between the two structures, one jeep and a passenger jeep. My question is, you will agree with me that despite the
fact [that] there was no division, two structures were clearly depicted in Exhibit "N" ?
A As I have said in my observation, there is only one structure because in between seemingly two structures, there is
a corridor connecting the two structures. While inside the said edifice, there is only one structure, sir.

It is clear from the foregoing that the workshop room where the packs of shabu were found is actually an integral part
of petitioner’s residence. Hence, it cannot be argued that there are two houses in the address stated in the warrants
and that the same failed to particularly describe the place to be searched. The rule is that a description of the place to
be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. Tested against the foregoing rule, the Court finds that the residence of petitioner stated in
the warrants as "Int. David Santos, C. Arellano Street, Malabon, Metro Manila," can with reasonable effort be
ascertained and identified by the NBI agents who were ordered to search the." . . above address, including the rooms
located therein." 28 

It must be stressed that petitioner does not deny ownership, access to and more importantly, immediate physical
occupancy and control over said workshop room and his entire residence. As a matter of law, when prohibited and
regulated drugs are found in a house or other building belonging to and occupied by a particular person, the
presumption arises that such person is in possession of such drugs in violation of law, and the fact of finding the same
is sufficient to convict. Otherwise stated, the finding of the drugs in the building owned by petitioner raised the
presumption of knowledge and, standing alone, was sufficient to convict. 29 

It may be argued that in the cases of illegal possession of regulated drugs and firearms filed against petitioner in
1991, in Criminal Case Nos. 10108-MN and 10109-MN, respectively, before Branch 72, of the Regional Trial Court of
Malabon, the trial court found that the "nipa hut" near the house of petitioner is owned by a certain Benjamin Santos.
30 But since it was not shown that said "nipa hut" is the same workshop room referred to in the present case, and
that the factual circumstances on which the finding that subject "nipa hut" is not owned by petitioner, still holds true
in the instant case, the Court cannot rule that there are indeed two houses in the address stated in the search
warrants issued against petitioner. At any rate, it is not the ownership of the place where the illegal items were seized
that matters. What is decisive is that, it is the petitioner who had access to and control over said workshop room
being an integral part of his house.

In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused
knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together
with his possession or control of such article. 31 Animus possidendi is only prima facie. It is subject to contrary proof
and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in
question, and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of
animus possidendi. 32 

In the instant case, petitioner failed to present any evidence to rebut the existence of animus possidendi over the
armalite rifle and the packs of shabu found in his residence. The mere uncorroborated statement that he was not
aware of the existence of said illegal items in his house is insufficient. 33 Moreover, the defense of "frame-up" raised
by petitioner is a common and standard line of defense which is invariably, viewed by this Court with disfavor, it being
capable of easy concoction and difficult to prove. Considering that no clear and convincing evidence was presented to
prove that he was really framed up, the presumption of regularity in the performance of official duty, as well as the
principle that findings of the trial court on the credibility of witnesses are entitled to great respect, must prevail over
the petitioner’s imputation of ill-motive and harassment on the part of the NBI Agents who conducted the search. 34 

For the crime of illegal possession of regulated drugs, the Court of Appeals correctly deleted the excess of 1 day in the
maximum penalty imposed by the trial court, i.e., four (4) years, two (2) months, and one (1) day of prision
correctional. In People v. Medenilla, 35 the Court held that if the regulated drug weighs less than 66.67 grams, then
the penalty is prision correctional, if 66.67 grams or more but less than 133.33 grams, then the penalty is prision
mayor, and if 133.33 grams or more, but less than 200 grams, then the penalty is reclusion temporal. Considering
that, 38.0201 grams of Methamphetamine Hydrochloride, or shabu is involved in the case at bar, the proper penalty is
prision correctional. There being no attendant modifying circumstance the maximum period of the imposable penalty,
cannot exceed two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, the medium
period of prision correctional. Applying the Indeterminate Sentence Law, the minimum period of the imposable penalty
shall be within the range of arresto mayor (1 month and 1 day to 6 months), the penalty next lower in degree to
prision correctional.

Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act 2002, increased the penalty for
illegal possession of 10 grams or more but less than 50 grams of methamphetamine hydrochloride or "shabu" to life
imprisonment and a fine ranging from four hundred thousand pesos (P400,000.00) to five hundred thousand pesos
(P500,000.00). However, said law not being favorable to the accused, cannot be given retroactive application in the
instant case.

Under Republic Act 8294, amending P.D. No. 1866, the penalty for illegal possession of firearms classified as high
powered, like an M16 armalite rifle, 36 is prision mayor minimum and a fine of P30,000.00. No modifying
circumstance having been proven, the penalty shall be imposed in its medium period. 37 Applying the Indeterminate
Sentence Law, the maximum period of the imposable penalty cannot exceed the medium period of prision mayor
minimum, i.e., six (6) years, eight (8) months and one (1) day to seven (7) years and four (4) months. The Court of
Appeals therefore erred in fixing the maximum period of the imposable penalty to eight (8) years of prision mayor.
The minimum period shall be within the range of prision correccional in its maximum period (4 years, 2 months and 1
day to 6 years), the penalty next lower in degree to prision mayor minimum.

WHEREFORE, in view of all the foregoing, the November 27, 1997 decision of the Court of Appeals in CA-G.R. CR No.
17334, finding petitioner Pedro Cupcupin guilty beyond reasonable doubt of the crimes of illegal possession of
regulated drugs and illegal possession of firearm is AFFIRMED with MODIFICATIONS. As modified, petitioner is
sentenced to suffer: (1) the indeterminate penalty of imprisonment ranging from six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months, of prision correccional, as maximum in Criminal Case No. 13374-MN,
for illegal possession of regulated drugs under Section 16, of R.A. No. 6425, as amended by R.A. No. 7659; and (2)
the indeterminate penalty of imprisonment ranging from six (6) years of prision correccional, as minimum, to seven
(7) years and four (4) months of prision mayor, as maximum, and to pay a fine of P30,000.00 for illegal possession of
firearm under Section 1, of P.D. No. 1866, as amended by R.A. No. 8294, in Criminal Case No. 13375-MN.
 [G.R. NO. 139301 : September 29, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. HUANG ZHEN HUA and JOGY LEE, Appellants.

This is an appeal from the Decision1 of the Regional Trial Court (RTC) of Parañaque City, Metro Manila, Branch 259,
convicting the appellants of violation of Section 16, Article III of Republic Act No. 6425, as amended.

The Case for the Prosecution

Police operatives of the Public Assistance and Reaction Against Crime (PARAC) under the Department of Interior and
Local Government received word from their confidential informant that Peter Chan and Henry Lao,2 and appellants
Jogy Lee and Huang Zhen Hua were engaged in illegal drug trafficking. The policemen also learned that appellant Lee
was handling the payments and accounting of the proceeds of the illegal drug trafficking activities of Lao and
Chan.3 PO3 Belliardo Anciro, Jr. and other police operatives conducted surveillance operations and were able to verify
that Lao and appellant Lee were living together as husband and wife. They once spotted Chan, Lao, the appellants and
two others, in a seafood restaurant in Bocobo Street, Ermita, Manila, late in the evening. On another occasion, the
policemen saw Chan, Lao, and the appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at
about 8:30 p.m. They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to 8:00 p.m.4 The police
operatives also verified that Chan and Lao resided at Room Nos. 1245 and 1247, Cityland Condominium, De la Rosa
Street, Makati City, and in a two-storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Niño,
Parañaque, Metro Manila.5

On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant No. 96-801 for violation of
Presidential Decree (P.D.) No. 1866 (illegal possession of firearms and explosives) and Search Warrant No. 96-802,
for violation of Sections 12, 14 and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive
Judge of the RTC of Manila.6 Senior Police Inspector Lucio Margallo supervised the enforcement of Search Warrant No.
96-801 at the Cityland Condominium at about 11:00 p.m. on October 29, 1996. With him were PO3 Anciro, Jr., PO3
Wilhelm Castillo, SPO3 Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well as a
Cantonese interpreter by the name of Chuang. While no persons were found inside, the policemen found two kilos of
methamphetamine hydrochloride, popularly known as shabu, paraphernalia for its production, and machines and tools
apparently used for the production of fake credit cards.7

Thereafter, the police operatives received information that Lao and Chan would be delivering shabu at the Furama
Laser Karaoke Restaurant at the corner of Dasmariñas and Mancha Streets, Manila. The policemen rushed to the
area on board their vehicles. It was 2:00 a.m. of October 26, 1996. The policemen saw Chan and Lao on board the
latter's Honda Civic car. As the two men alighted, one of the men approached them and introduced himself, but Chan
and Lao fired shots. Thus, a shoot-out ensued between the members of the raiding team and the two suspects. Chan
and Lao were shot to death during the encounter. The policemen found two plastic bags, each containing one kilo of
shabu, in Lao's car.

The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce Search Warrant No. 96-802.
When the policemen arrived at the place, they coordinated with Antonio Pangan, the officer in charge of security in
the building.8 The men found that the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung.
The policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the condominium unit. Anciro,
Jr. knocked repeatedly on the front door, but no one responded. Pangan, likewise, knocked on the door.9 Appellant
Lee peeped through the window beside the front door.10 The men introduced themselves as policemen,11 but the
appellant could not understand them as she could not speak English.12 The policemen allowed Pangan to communicate
with appellant Lee by sign language and pointed their uniforms to her to show that they were policemen. The
appellant then opened the door and allowed the policemen, Pangan and the security guards into the condominium
unit.13 The policemen brought appellant Lee to the second floor where there were three bedrooms - a master's
bedroom and two other rooms. When asked where she and Lao slept, appellant Lee pointed to the master's
bedroom.14 Anciro, Jr., Margallo and PO3 Wilhelm Castillo then searched the master's bedroom, while Ferias and
Pangan went to the other bedroom where appellant Zhen Hua was sleeping.15 Ferias awakened appellant Zhen Hua
and identified himself as a policeman. Appellant Zhen Hua was surprised.16
Anciro, Jr. saw a small cabinet inside the master's bedroom about six feet high. He stood on a chair, opened the
cabinet and found two transparent plastic bags each containing one kilo of shabu,17 a feeding bottle, a plastic
canister18 and assorted paraphernalia.19 Inside the drawer of the bed's headboard, Anciro, Jr. also found assorted
documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit cards, passports and
identification cards of Lao and Lee.20 Anciro, Jr. asked appellant Lee who was the owner of the crystalline substance,
but the latter did not respond because she did not know English.21 Anciro, Jr. asked Margallo for instructions on what
to do with the things he had found, and the latter told him to keep the same for future reference,22 and as evidence
against any other suspect for illegal drug transactions.23 Anciro, Jr., Pangan and Margallo later showed the seized
articles to the other members of the team.24

Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing her to the PARAC headquarters.
Appellant Lee did as she was told and took some clothes from the cabinet in the master's bedroom where Anciro, Jr.
had earlier found the shabu.25

The policemen brought the appellants to the PARAC headquarters. The following articles were found and confiscated
by the policemen in the condominium unit:

A. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline granules later tested
to be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of suspected Shabu;

c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu '.

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised
Burners used for burning Shabu, aluminum foils, etc.;26

Anciro, Jr. placed the articles he found in the cabinet inside a box.27 The appellants were then brought to the PARAC
headquarters where they were detained. Pangan signed a Certification28 that the search conducted by the policemen
had been orderly and peaceful. Anciro, Jr. affixed his initials on the transparent plastic bags and their contents, the
transparent baby feeding bottle and the plastic cannister and their contents. On October 26, 1996, he and
Ferias29 brought the seized items to the PNP Crime Laboratory for laboratory examination30 along with the letter-
request31 thereon.

On the same day, Forensic Chemist Officer Isidro L. Cariño signed Chemistry Report No. D-1243-96 which contained
his findings on the laboratory examination of the items which were marked as Exhibits "A" to "A-4," viz:

SPECIMEN SUBMITTED:
Exh. "A" - One (1) "must de Cartier Paris" carton containing the following:
Exh. "A-1" - One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance.
Exh. "A-2" - One (1) heat-sealed transparent plastic bag containing 998.10 grams of white crystalline substance.
Exh. "A-3" - One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of
white crystalline substance.
Exh. "A-4" - One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline
substance.

NOTE: The above-stated specimen were allegedly taken from the residence of the above-named subjects. xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:
Qualitative examination conducted on the above-stated specimens, Exhs. "A-1" through "A-4" gave POSITIVE result to
the test for Methamphetamine hydrochloride, a regulated drug. xxx32

The police officers executed an affidavit of arrest.33 Pangan and the two security guards signed a certification stating
that nothing was destroyed in the condominium unit and that the search was orderly and peaceful.34 The policemen
also accomplished an inventory of the articles seized during the search.35

The appellants were charged of violation of Section 16, Rep. Act No. 6425, as amended, in an Information filed in the
RTC of Parañaque, Metro Manila, the accusatory portion of which reads:

That on or about the 26th day of October 1996, in the Municipality of Parañaque, Metro Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and
both of them mutually helping and aiding one another, not being lawfully authorized to possess or otherwise use any
regulated drug and without the corresponding license or prescription, did then and there willfully, unlawfully and
feloniously have, in their possession and under their control and custody, the following to wit:

A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline substance;

B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline substance;

C. One (1) transparent plastic "Babyflo Nurser" feeding bottle with pink cover containing 18.52 grams of white
crystalline substance;

D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline substance

which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a regulated drug.

CONTRARY TO LAW.36

Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and pleaded not guilty to the
charge.

The Case for the Appellants

Appellant Jogy Lee denied the charge. She testified that she was a resident of Kwantong, China, a college graduate
who could not speak nor understand English. She was once employed in a real estate firm. One of her co-employees
was Huang Zhen Hua.37 She met Henry Lao in China sometime in 1995,38 and he brought her to Belgium that same
year. Lao also helped her procure a Belguim passport, for he explained that if she only had a Chinese passport, it
would be difficult to secure visas from countries she wanted to go to and visit; whereas many countries did not
require a Belgian passport holder to secure visas before allowing entry therein. In the process, he and Lao fell in love
and became lovers.

Upon Lao's invitation, appellant Lee visited the Philippines as a tourist for the first time in April 1996. Lao met her at
the airport, and she was, thereafter, brought to a hotel in Manila where she stayed for less than a month.39 She
returned to the Philippines a second time and was again billeted in a hotel in Manila. All her expenses were shouldered
by Lao, who was engaged in the garlic business.40 As far as she knew, Lao was not engaged in any other business.41 In
June 1996, she invited her friend, appellant Huang Zhen Hua to visit the Philippines to enjoy the tourist spots.42 They
were then in China.

In the evening of October 1, 1996, appellant Lee returned to the Philippines on a tourist visa. She was fetched by Lao,
and she was brought to his condominium unit at No. 19, Atlantic Drive, Pacific Grand Villa, Sto. Niño, Parañaque.
She had been residing there since then. She and Lao used to go to the shopping malls43 and she even saw Chan once
when he cleaned his Nissan car in Lao's garage.
On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was met by Lao at the airport. He tried
to check in at the Diamond Hotel but Lee told him that he could stay in the condominium unit. Zhen Hua was brought
to the Villa where he had been staying since then. The appellants had made plans to visit Cebu.

At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master's bedroom at the condominium
unit. She had closed all the windows because she had turned the air conditioning unit on. Zhen Hua was sleeping in
the other bedroom in the second floor beside the master's bedroom. Lao's Honda Civic car and Chan's Nissan car were
in the garage beside the condominium unit. Momentarily, Lee heard someone knocking on the bedroom door. When
she opened it, three (3) policemen barged into the bedroom and at the room where appellant Zhen Hua was sleeping.
Anciro, Jr. was not among the men. Lee did not hear the policemen knock at the main door before they entered.44 The
policemen were accompanied by Chuang, a Cantonese interpreter, who told her that the policemen were going to
search the house.45 Appellant Lee saw a policeman holding two papers, but no search warrant was shown to her.46 She
was so frightened.

The policemen placed two plastic bags on the bed before they searched the master's bedroom. Appellant Lee went to
the room of appellant Zhen Hua and when she returned to the master's bedroom, she saw shabu on the bed.47 The
policemen took her ring, watch and the P600,000 owned by Lao which had earlier been placed in the cabinet, her
papers and documents, and those of Lao's as well. She had never seen any shabu in the room before the incident.
Thereafter, she and appellant Zhen Hua were brought to the PARAC headquarters where they were detained. Chuang,
the cantonese interpreter, informed her that shabu had been found in the condominium unit and that the policemen
were demanding P5,000,000 for her release. She was also told that if she did not pay the amount, she would be
charged with drug trafficking, and that the leader of the group who arrested her would be promoted. However, she
told Chuang that she had no money. Since she could not pay the amount, she was boarded on a PARAC owner-type
jeep and returned to the condominium unit where the policemen took all the household appliances, such as the
television, compact discs, washing machine, including laundry detergent. Only the sofa and the bed were not taken.
About ten (10) days later, the appellants secured the services of counsel.

Antonio Pangan testified that he and the policemen knocked on the door to the condominium unit but that no one
responded. He shouted, "Sir Henry," referring to Lao, but there was no response from inside the condominium. After
about three (3) to five (5) minutes, a policeman kicked the door open and they entered the house. They went to the
second floor and saw the appellants sleeping.

Pangan testified that he did not see any shabu that was seized by the policemen. He learned that shabu had been
found and taken from the condominium unit only when he saw someone holding up the substance on television during
the daily news program TV Patrol.48

Appellant Zhen Hua also denied the charge. He corroborated the testimony of appellant Lee that upon her invitation,
he arrived in the Philippines on a tourist visa on October 22, 1996. He claimed that he did not see Anciro, Jr. in the
condominium unit when policemen arrived and searched the house. He testified that aside from the PARAC policemen,
he was also investigated by policemen from Taiwan.

After trial, the court rendered judgment on January 10, 1999, convicting both appellants of the crime charged. The
decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua GUILTY beyond reasonable
doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA 7659, and considering the absence of any
aggravating circumstances, this Court hereby sentences both accused to suffer the penalty of Reclusion Perpetua and
to pay a fine of P500,000.00 each. The properties seized in accordance with the search warrants issued relative to this
case are hereby ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to turn
over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper disposition.

The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both accused Jogy Lee and
Huang Zhen Hua from the Parañaque City Jail to the Bureau of Correccions (sic) in Muntinlupa City.
SO ORDERED.49

The Present Appeal

On appeal to this Court, appellant Zhen Hua, asserts that:

First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently improbable and palpably
false to be accepted as a faithful reflection of the true facts of the case;

Second. Appellant Huang Zhen Hua's conviction was based merely on the trial court's conclusion that he "is not an
epitome of first class tourist and that he appeared nonchalant throughout the proceedings;"

Third. In convicting said appellant, the court below completely disregarded the glaring facts and admissions of the
prosecution's principal witnesses that no regulated drug was ever found in his possession;

Fourth. The trial court, likewise, ignored the fact that the appellant's arrest was illegal and in violation of his
constitutional and basic rights against arrest without probable cause as determined by a Judge and that his
arraignment did not constitute a waiver of such right;

Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of the police officers
who took part in the search had been overcome by prosecution's own evidence, thereby wrongly giving such
presumption substance over and above the constitutional presumption of innocence of the appellant.50

For her part, appellant Lee contends that:

1.01 THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE TOWNHOUSE RENTED BY
HENRY LAU WERE MERELY PLANTED BY PARAC OPERATIVES;

1.02 THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR, DUBIOUS AND UNREASONABLE AS
THE SEARCH WARRANT DID NOT CONTAIN ANY PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR
WAS THERE ANY INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR UNDERSTAND THE
ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING THE TRIAL;

2. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE GROUND THAT HER GUILT WAS
NOT ESTABLISHED BY PROOF BEYOND REASONABLE DOUBT.51

For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua should be acquitted on the
ground of reasonable doubt, but that the conviction of appellant Lee should be affirmed.

The Court's Ruling

We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua and Jogy Lee sequentially.

On Appellant Zhen Hua

The OSG contends that the prosecution failed to muster the requisite quantum of evidence to prove appellant Zhen
Hua's guilt beyond reasonable doubt for the crime charged, thus:

Huang Zhen Hua denies having anything to do with the bags of "shabu" found in the townhouse unit of Henry Lau. He
claims that he arrived in the Philippines as a tourist on October 22, 1996, upon the invitation of Jogy Lee. Allegedly, at
the time of his arrest, he had been in the Philippines for barely four days. He claims that he was just temporarily
billeted as a guest at the townhouse where Jogy Lee was staying. And that he had no control whatsoever over said
townhouse. He puts emphasis on the fact that the search of his room turned out to be "negative" and that the raiding
team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He, therefore, prays for
his acquittal.
The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution's evidence fails to meet the
quantum of evidence required to overcome the constitutional presumption of innocence; thus, regardless of the
supposed weakness of his defense, and his innocence may be doubted, he is nonetheless entitled to an acquittal
(Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited in People v. Fronda, G.R. No. 130602, March 15, 2000).
The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the
conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence for the
prosecution.

In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did not give much
weight to the admission made by the prosecution witnesses that no regulated drug was found in his person. No
regulated drug was also found inside his room or in his other belongings such as suitcases, etc. Thus, he had no
actual or constructive possession of the confiscated "shabu."

Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4) days at the time
when he was arrested. The prosecution was unable to show that in these four (4) days Huang Zhen Hua committed
acts which showed that he was in cahoots with the drug syndicate Henry Lau and Peter Chan. It was not even shown
that he was together with Henry Lau and Peter Chan on any occasion. As for Huang Zhen Hua, therefore, there is no
direct evidence of any culpability. Nor is there any circumstantial evidence from which any culpability may be
inferred.52

We agree with the OSG. In a case of recent vintage, this Court, in People v. Tira,53 ruminated and expostulated on the
juridical concept of "possession" under Section 16, Article III of Rep. Act No. 6425, as amended, and the evidence
necessary to prove the said crime, thus:

The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the
accused has knowledge that the said drug is a regulated drug. This crime is mala prohibita, and, as such, criminal
intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess
(animus posidende) the drugs. Possession, under the law, includes not only actual possession, but also constructive
possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused.
On the other hand, constructive possession exits when the drug is under the dominion and control of the accused or
when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or
control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the
place where the contraband is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would
not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any
reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the
existence and presence of the drug in the place under his control and dominion and the character of the drug. Since
knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and
control is an internal act, the same may be presumed from the fact that the dangerous drug is in the house or place
over which the accused has control or dominion, or within such premises in the absence of any satisfactory
explanation.54

In this case, the prosecution failed to prove that the appellant, at any time, had actual or constructive possession of
the regulated drug found in the master's bedroom where appellant Lee was sleeping; or that the appellant had
accessed the said room at any given time; or that he had knowledge of the existence of shabu in appellant Lee's
bedroom. Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only on October 22,
1996 or barely four (4) days before the arrival of the policemen and the search conducted in the condominium unit
leased by Henry Lao. He was a mere visitor of appellant Lee. There is no evidence that appellant Zhen Hua was aware
of the alleged illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. The policemen did
not find any regulated drug in the room where appellant Zhen Hua was sleeping when they made their search.
The evidence of the prosecution against appellant Zhen Hua falls short of the requisite quantum of evidence to prove
conspiracy between him, appellant Lee and Chan or Lao.

There is conspiracy when two or more persons agree to commit a crime and decide to commit it.55 Conspiracy cannot
be presumed.56 Conspiracy must be proved beyond reasonable doubt like the crime subject of the
conspiracy.57 Conspiracy may be proved by direct evidence or by proof of the overt acts of the accused, before, during
and after the commission of the crime charged indicative of a common design.58

The bare fact that on two or three occasions after the arrival of appellant Zhen Hua from China, and before the search
conducted in Lao's condominium unit, appellant Zhen Hua had been seen with Lao, Chan and appellant Lee. Having
dinner or lunch at a restaurant does not constitute sufficient proof that he had conspired with them or with any of
them to possess the subject-regulated drug. Mere association with the principals by direct participation or mere
knowledge of conspiracy, without more, does not suffice.59Anciro, Jr. even admitted that during his surveillance, he
could have mistaken appellant Zhen Hua for another group of Chinese persons who were also being
watched.60Appellant Zhen Hua should, thus, be acquitted.

On Appellant Lee

Appellant Lee avers that certain irregularities were attendant in the issuance and implementation of Search Warrant
No. 96-802, as follows: (a) the policemen who implemented the search warrant failed in their duty to show to her the
said warrant, inform her of their authority and explain their presence in the condominium unit; (b) the policemen
gained entry into the condominium unit by force while she was sleeping; and (c) articles and personal effects owned
by her and Lao were taken and confiscated by the policemen, although not specified in the search warrant.

The appellant concludes that the articles procured by the policemen on the occasion of the search of the condominium
unit are inadmissible in evidence.

Appellant Lee, likewise, contends that she was a victim of a frame-up because the policemen planted the regulated
drug on her bed even before they searched the bedroom. She went to the room of appellant Zhen Hua to find out if he
was already awake, and when she returned to the bedroom, she noticed shabu on her bed. She avers that the sole
testimony of Anciro, Jr., that he found the regulated drug in the master's bedroom, is incredible because he was not
with the policemen who barged into the bedroom. She notes that even Pangan, the caretaker of the Villa, testified
that he did not see any illegal drug confiscated by the policemen.

According to appellant Lee, the trial court erred in convicting her of the crime charged, considering that Lao and Chan
were the suspects identified in the search warrants, not her. She avers that she had no knowledge of the alleged
illegal drug transactions of her lover Lao. She contends that there was no probable cause for her arrest as her mere
presence in the condominium unit does not render her liable for the shabu found in the master's bedroom of the
condominium unit leased by Lao. She further avers that the testimonies of the witnesses for the prosecution are
inconsistent; hence, barren of probative weight. The appellant also asserts that she was deprived of her right to due
process when the trial court conducted a trial without a Chinese interpreter to assist her.

The OSG, for its part, avers that the police officers are presumed to have performed their duties. Based on the
testimony of Anciro, Jr., appellant Lee was shown the search warrant, through the window, and the policemen
identified themselves through their uniforms. The security guards of the condominium also explained the search
warrant to the appellant. Although she was, at first, reluctant to open the door, appellant Lee later voluntarily opened
the door and allowed them entry into the unit. There was no evidence of forcible entry into the unit and no breakage
of any door. The OSG further avers that the appellant had been in the country for quite sometime already and could
not have gotten around without understanding English. In fact, the OSG argues that when Anciro, Jr. told the
appellant to get some of her clothes since she would be brought to the police headquarters in Quezon City, she did as
she was told and took her clothes from the cabinet where the shabu were found by the policemen.

The OSG further points out that Pangan, the chief of security of the subdivision who was a witness for appellant Lee,
even testified that the search was orderly. The OSG contends that there was probable cause for the appellant's arrest
because an informant had tipped off the arresting officers that the appellant was a member of a syndicate dealing
with illegal drugs, and that she handled the accounts of Lao and Chan. The appellant was not a victim of frame-up
because she was present when the policemen searched the master's bedroom where she was sleeping and where she
kept her clothes, and witnessed the discovery of the regulated drugs and paraphernalia.

We agree with the contention of the appellant that the constitutional proscription against unreasonable search and
seizure applies to Filipino citizens, as well as to aliens temporarily residing in the country. The rule against
unreasonable search and seizure forbids every search that is unreasonable; it protects all those suspected or known to
be offenders, as well as the innocent. The guarantee is as important and imperative as the guarantee of the other
fundamental rights of the citizens.61 All owes the duty for its effective enforcement lest there shall be an impairment of
the right for the purpose for which it was adopted.62

Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides:

SEC. 7. Right to break door or window to effect search. - The officer, if refused admittance to the place of directed
search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house
or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him
when unlawfully detained therein.

The police officers were obliged to give the appellant notice, show to her their authority, and demand that they be
allowed entry. They may only break open any outer or inner door or window of a house to execute the search warrant
if, after such notice and demand, such officers are refused entry to the place of directed search. This is known as the
"knock and announce" principle which is embodied in Anglo-American Law. The method of entry of an officer into a
dwelling and the presence or absence of such notice are as important considerations in assessing whether subsequent
entry to search and/or arrest is constitutionally reasonable.63 In Gouled v. The United States,64 it was held that a lawful
entry is the indispensable predicate of a reasonable search. A search would violate the Constitution if the entry were
illegal, whether accomplished by force, by illegal threat or mere show of force.

The principle may be traced to a statute in England way back in 1275 providing that "if a person takes the beasts of
another and causes them to be driven into a castle or fortress, if the sheriff makes a solemn demand for the
deliverance of the beasts, and if the person did not cause the beasts to be delivered incontinent, the king shall cause
the said castle or fortress to be beaten down without recovery." Common law courts appended an important
qualification:

But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors ', for the law
without a default in the owner abhors the destruction or breaking of any house (which is for the habitation and safety
of man) by which great damage and inconvenience might ensue to the party, when no default is in him; for perhaps
he did not know of the process, of which, if he had noticed, it is to be presumed that he would obey it' 65

Blackstone simply stated the principle that the sheriff may justify breaking open doors if the possession be not quietly
delivered.66 The principle was woven quickly into the fabric of early American law and in the Fourth Amendment in the
United States Federal Constitution. It is an element of the reasonableness inquiry under the Fourth Amendment as
held in Wilson v. Arkansas.67

Generally, officers implementing a search warrant must announce their presence, identify themselves to the accused
and to the persons who rightfully have possession of the premises to be searched, and show to them the search
warrant to be implemented by them and explain to them said warrant in a language or dialect known to and
understood by them. The requirement is not a mere procedural formality but is of the essence of the substantial
provision which safeguards individual liberty.68 No precise form of words is required. It is sufficient that the accused
has notice of the officers, their authority and the purpose of the search and the object to be seized. It must be
emphasized that the notice requirement is designed not only for the protection of the liberty of the person to be
searched or of his property but also the safety and well-being of the officers serving and implementing the search
warrant. Unless the person to whom the warrant is addressed and whose property is to be searched is notified of the
search warrant and apprised of the authority of the person serving the warrant, he may consider the unannounced
intrusion into the premises as an unlawful aggression on his property which he will be justified in resisting, and in the
process, may cause injury even to the life of the officer implementing the warrant for which he would not be criminally
liable. Also, there is a very real possibility that the police serving and implementing the search warrant may be
misinformed as to the name or address of the suspect, or to other material affirmations. Innocent citizens should not
suffer the shock, fright, shame or embarrassment attendant upon an unannounced intrusion.69 Indeed, a lawful entry
is the indispensable predicate of a reasonable search. A search would violate the constitutional guarantee against
unreasonable search and seizure if the entry were illegal, whether accomplished by force, or by threat or show of
force or obtained by stealth, or coercion.70

Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the
possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the
identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that
there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone
outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the
officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional
right to destroy evidence or dispose of evidence.71 However, the exceptions above are not exclusive or conclusive. At
times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or
not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be
constitutionally defective, if the police officers' entry was without prior announcement, law enforcement interest may
also establish the reasonableness of an unannounced entry.72 Indeed, there is no formula for the determination of
reasonableness. Each case is to be decided on its own facts and circumstances.73 In determining the lawfulness of an
unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason
to believe and the time of the entry.74 In Richards v. Wisconsin,75 it was held that:

[1] In order to justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective
investigation of the crime by, for example, allowing the destruction of evidence. This standard as opposed to a
probable-cause requirement'strikes the appropriate balance between the legitimate law enforcement concerns at issue
in the execution of search warrants and the individual privacy interest affected by no-knock entries.76

As articulated in Benefield v. State of Florida,77 what constitutes breaking includes the lifting of a latch, turning a door
knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a
closed screen door.78 However, entry obtained through the use of deception, accomplished without force is not a
"breaking" requiring officers to first announce their authority and purpose because the reasons behind the rule are
satisfied - there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the
residence of the accused.79

As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled
into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all
the circumstances.80 The proper trigger point in determining, under the "knock and announce" rule, whether the police
waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted
that the police wanted entry to execute a warrant.81

In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure
before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were
accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had
a search warrant for the premises, and also explained to her that the officers were going to search the condominium
unit.82 The appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to conduct
the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as
she was to be brought to the police headquarters. Without such request being interpreted to the appellant, the latter
did as she was directed and took some clothes from the cabinet atop the headboard.83
The evidence on record shows that the police officers knocked on the outer door before entering the condominium
unit, and after a while, the appellant opened the door and allowed the policemen and Pangan to enter. Anciro, Jr.
testified, thus:

Q Do you still recall Mr. Witness the identities of the security guards who helped you or assisted you in implementing
said search warrants at Grand Villa Subdivision? chanroblesvirtualawlibrary

A The OIC of the Home Owners' Association, Antonio Pangan, and the OIC of the Security Agency and two (2) other
security guards.

Q Do you recall the names of those persons you mentioned Mr. Witness? chanroblesvirtualawlibrary

A I can hardly recall their names.

Q After having been assisted or coordinated with said security officers and the OIC of the Home Owners' Association,
what did you do next? chanroblesvirtualawlibrary

A We told them that if we could ask them if they have a duplicate key and also knock and introduce ourselves, knock
on the said condominium.

Q Did they do that, the request? chanroblesvirtualawlibrary

A Yes, Sir.

Q Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa? chanroblesvirtualawlibrary

A Yes, Sir.

Q While you were already at the door of that targeted house to implement said search warrants, what happened next,
if any? What did you do after that? chanroblesvirtualawlibrary

A We knocked on the door and tried to find out if there was somebody there because the Home Owners' Association
doesn't have any key for the door. We asked them to knock also because they are the ones who have access with the
tenants.

Q And after knocking, what happened next? chanroblesvirtualawlibrary

A There were around 5 minutes, no one was trying to open the door. By that time, we thought they were still asleep.

Q And then after that what did you do, if any? chanroblesvirtualawlibrary

A We asked Mr. Pangan to knock and introduce himself and another security guard to try to knock on the kitchen
which is on the back door.

Q And then after that? chanroblesvirtualawlibrary

A And then after that, it was a female person who showed up to (sic) the window of the kitchen and asked who we are
in a sign language.

Q And this female person who showed up to (sic) the window - I withdraw. Were you able to have a good look on that
female person who showed herself thru the window? chanroblesvirtualawlibrary

A Yes, Sir.

Q And who is this person Mr. Witness? chanroblesvirtualawlibrary

A She was identified as Jogy Lee, Sir.84

The appellant failed to prove that the policemen broke open the door to gain entry into the condominium unit. She
could have asked the court for an ocular inspection to show the door which was allegedly broken into by the
policemen, or at least adduce in evidence pictures showing the said breakage. The appellant failed to do so. The
testimony of the appellant is even belied by Pangan, who was a witness for the appellant, who certified, along with
three other security guards, that nothing was destroyed and that the search was conducted in a peaceful and orderly
manner.85

We are not impervious of the testimony of Pangan that the policemen kicked the outer door to gain entry into the
condominium unit, which testimony is seemingly in derogation of his certification. However, Pangan admitted that the
policemen did so only after knocking on the door for three (3) to five (5) minutes and after he had called Lao in a loud
voice and received no response from the appellants:

Q Did you come to know the persons wherein your presence was being required according to your security guards? chanroblesvirtualawlibrary

A According to my security guards, they introduced themselves as police operatives.

Q Did you comply with the invitation of these police authorities? chanroblesvirtualawlibrary

A Yes, they called me and according to them, they will search Unit 19, that is what they told me.

Q Can you please tell us what time did the police operatives conduct the search? chanroblesvirtualawlibrary

A I cannot recall anymore because the incident happened in 1996. I don't know what time was that.

Q When they conducted the search, were you there? chanroblesvirtualawlibrary

A I was there because that unit cannot be opened if the caretaker is not present.

Q Are you trying to say that you were the one who opened the door of that unit occupied by Henry Kau Chung? chanroblesvirtualawlibrary

A They kicked the door and when nobody opened the door, they pushed the door and the door was opened.

Q They forcibly opened the door when nobody opened it? chanroblesvirtualawlibrary

A Kaya naman po ginawa 'yon dahil nandoon naman po ang caretaker, wala naman pong masamang mangyayari dahil
nandoon naman po ang namamahala.

Q From the time you knocked at the door of this unit up to the time that the police operatives forcibly break open the
door, how many minutes had elapsed? chanroblesvirtualawlibrary

A Matagal din po silang kumakatok sa pintuan. I said, "Mr. Henry, pakibuksan n yo ang pinto, would you mind to open
the door, kasi merong mga police officers na gustong ma-search itong unit mo. Then, when nobody was answering,
they forcibly opened the door.

Q Was there any other occupant other than Henry Kau Chung in that unit at that time? chanroblesvirtualawlibrary

A At the second floor, they saw this Jogy Lee and her male companion whom I do not know.

Q But during the time that you were trying to seek entry to the door, there was no one who responded, is that
correct?chanroblesvirtualawlibrary

A Pardon, Sir? chanroblesvirtualawlibrary

Q At the time that you were trying to knock at the door, there was no one who responded to your knocking at the
door? chanroblesvirtualawlibrary

A Nobody was answering, Sir.

Q And that compelled the police operatives to open the door forcibly? chanroblesvirtualawlibrary

A Yes, Sir.86

COURT:

From the first time you knocked at the door, how long a time lapsed before the police officer broke open the door? chanroblesvirtualawlibrary

A Matagal din po.

Q For how long? chanroblesvirtualawlibrary

A Maybe for about three to five minutes.

Q When nobody was answering, they forced open the door? chanroblesvirtualawlibrary

A Yes, Your Honor.

COURT:

Continue.87

The appellant failed to prove, with clear and convincing evidence, her contention that Anciro, Jr. placed the shabu on
her bed before he continued his search in the bedroom, and that she was a victim of frame-up by the policemen. She
relied on her testimony and those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of
the shabu in the cabinet.

The appellant's defense of frame-up is nothing new. It is a common and standard line of defense in most prosecutions
for violation of the Dangerous Drugs Law. While such defense cannot and should not always be considered as
contrived, nonetheless, it is generally rejected for it can easily be concocted but is difficult to prove. Police officers
are, after all, presumed to have acted regularly in the performance of their official functions, in the absence of clear
and convincing proof to the contrary, or that they are motivated by ill-will.88

It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover and take custody of the shabu
subject of this case. However, as explained by Pangan, he remained in the ground floor of the condominium unit while
Anciro, Jr., Castillo and Margallo searched the bedroom of appellant Lee and her lover Lao, and Ferias proceeded to
the room occupied by appellant Zhen Hua where he conducted his search. Thus, Pangan testified:

Q When the master's bedroom was searched where Jogy Lee was then, according to you, sleeping, did you
accompany the PARAC members? chanroblesvirtualawlibrary

A No, Sir, because I was talking to a member of the PARAC downstairs.

Q What about the members of the security force? chanroblesvirtualawlibrary

A They were outside, Sir.

Q During the search made on the master's bedroom? chanroblesvirtualawlibrary

A Yes, Sir.
Q How about when the search was made in the room occupied by Huang Zhen Hua, were you present then? chanroblesvirtualawlibrary

A No, Sir, I was still downstairs.

Q How about the other guards? chanroblesvirtualawlibrary

A They were also outside.89

For his part, Ferias declared:

Q In other words, you did not go inside the biggest room? chanroblesvirtualawlibrary

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? chanroblesvirtualawlibrary

A Yes, Sir.

Q What happened next? chanroblesvirtualawlibrary

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhenhua? chanroblesvirtualawlibrary

A He was surprised.90

Q In other words, you did not go inside the biggest room? chanroblesvirtualawlibrary

A No, Sir.

Q You proceeded to another room where co-accused Huang Zhen Hua was then sleeping? chanroblesvirtualawlibrary

A Yes, Sir.

Q What happened next? chanroblesvirtualawlibrary

A We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.

Q What was the reaction of Huang Zhen Hua? chanroblesvirtualawlibrary

A He was surprised.91

Pangan testified that before the police officers conducted their search in the second floor of the condominium unit, he
did not see them bring in anything:

Q But you are very sure that before the police officers searched the unit, you did not see them bringing anything with
them, they were all empty-handed? chanroblesvirtualawlibrary

A I did not see, Sir.92

No less than Pangan himself, a witness for the appellants, and three of the security guards of the subdivision, who
accompanied the policemen in implementing the search warrants, certified that, what was found inside the
condominium unit and confiscated by the policemen were two plastic bags which contained white crystalline powder
substances suspected to be shabu.93
The appellant admitted that she saw shabu in her bedroom while the policemen were there. She claimed that the
policemen placed the plastic bag on the bed before they started the search and that she noticed the shabu only after
he returned from the room of appellant Zhen Hua to see if he was already awake is hard to believe.

First. We find it incredible that the policemen placed the shabu on the appellant's bed, in her full view, for which the
latter could be prosecuted for planting evidence and, if convicted, sentenced to death under Section 19 of Rep. Act
7659:

SECTION 19. Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Act of 1972, is hereby
amended to read as follows:

Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police Agencies and the
Armed Forces, 'Planting' of Evidence.' The maximum penalties provided for [in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11,
12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and 19 of Article III shall be imposed, if those found guilty of
any of the said offenses are government officials, employees or officers, including members of police agencies and the
armed forces.

Any such above government official, employee or officer who is found guilty of "planting" any dangerous drugs
punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act in the
person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as
therein provided.

Second. The appellant failed to inform her counsel of the alleged planting of evidence by the policemen; if she had
done so, for sure, the said counsel would have prepared her affidavit and filed the appropriate motion in court for the
suppression of the things/articles seized by the policemen.

Third. The appellant failed to charge the policemen with planting of evidence before or after she was charged of
violation of Rep. Act No. 6425, as amended.

Fourth. The appellant cannot even identify and describe the policeman or policemen who allegedly planted the
evidence.

The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias, the articles and substances
found and confiscated from the condominium unit of Lao and appellant Lee at Atlantic Drive and at the Cityland
condominium unit of Lao and Chan were itemized as follows:

A. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white crystalline granules later tested to
be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of suspected Shabu;

c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu'

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for sniffing shabu, Improvised
Burners used for burning Shabu, aluminum foils, etc.;

A. TWO (2) Kettles/Pots containing more or less 1 - kilos of Raw Shabu or Methamphetamine Hydrochloride;

b. Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu;

c. Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked Shabu;

c. Several pieces of Plastic Strainers used for draining out liquids from finished Shabu;

e. One (1) Plastic Container with liquid chemical of undetermined element;

f. Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures

g. One (1) Electric Cooking Stove w/one coil burner;

h. One (1) Unit Card Making Machine;

i. One (1) Unit Card Stamping Machine;

j. Several pieces of Credit Cards and Telephone Cards;94

Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder which were found and confiscated
at Atlantic Drive and, in the company of Ferias, delivered the same to the PNP Crime Laboratory for examination, per
the request of Police Superintendent Janice P. de Guzman, the chief of the PARAC.

We agree with the appellant that she was not one of the accused named in the search warrants. However, such fact
did not proscribe the policemen from arresting her and charging her of violation of Rep. Act No. 6425, as amended.
There was, in fine, probable cause for her warrantless arrest independent of that found by Judge William Bayhon when
he issued the search warrants against Lao and Chan for search of the condominium units at Atlantic Drive and
Cityland.

Probable cause exists for the warrantless detention and arrest of one at the premises being searched when the facts
and circumstances within their knowledge and of which they had reliable and trustworthy information are sufficient to
themselves warrant a reasonable belief of a cautious person that an offense has been or is being committed.95 It has
been held that:

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment
to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their
identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen.
Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the
brick-shaped package of marijuana in plain view. Even assuming that her presence in a small room with the
contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers'
belief that she was in joint possession with her husband, that fact was accompanied by the officers' information that
Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at
the time of her arrest there were no sufficient grounds for a reasonable belief that Diane Ker, as well as her husband,
were committing the offense of possession of marijuana in the presence of the officers.96

In Draper v. United States,97 it was held that informations from a reliable informant, corroborated by the police
officer's observations as to the accuracy of the description of the accused, and of his presence at a particular place, is
sufficient to establish probable cause. In this case, the police officers received reliable information and verified, after
surveillance, that appellant Lee and Lao were living together as husband and wife in the condominium unit and that
appellant Lee handled the accounting of the payments and proceeds of the illegal drug trafficking activities of Lao.
Indeed, the policemen found that the appellant occupied the bedroom and slept in the same bed used by Lao. The
appellant took her clothes from the same cabinet where the subject shabu and paraphernalia were found by Anciro,
Jr. The appellant had been living in the same condominium unit with Lao since October 1, 1996 until her arrest on
October 25, 1996. Along with Lao, the appellant thus had joint control and possession of the bedroom, as well as of
the articles, paraphernalia, and the shabu found therein. Such facts and circumstances are sufficient on which to base
a reasonable belief that the appellant had joint possession of the regulated drugs found in the bedroom along with
Lao, her live-in partner, in line with our ruling in People v. Tira.98 For the purpose of prosecution for violation of the
Dangerous Drugs Law, possession can be constructive and need not be exclusive, but may be joint.99

Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the appellant and Lao which were not
described in the search warrants. However, the seizure of articles not listed in a search warrant does not render the
seizure of the articles described and listed therein illegal; nor does it render inadmissible in evidence such articles
which were described in the warrant and seized pursuant thereto. Moreover, it bears stressing that Anciro, Jr. saw the
unlisted articles when he and the other policemen implemented the search warrants. Such articles were in plain view
of Anciro, Jr. as he implemented the search warrants and was authorized to seize the said articles because of their
close connection to the crime charged. As held in Coolidge, Jr. v. New Hampshire:100

An example of the applicability of the 'plain view' doctrine is the situation in which the police have a warrant to search
a given area for specified objects, and in the course of the search come across some other article of incriminating
character.'

Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but
by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may
inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect. - And an object that comes into view
during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a
warrant.' Finally, the 'plain view' doctrine has been applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an incriminating object. '101

It cannot be denied that the cards, passbook, passport and other documents and papers seen by the policemen have
an intimate nexus with the crime charged or, at the very least, incriminating. The passport of the appellant would
show when and how often she had been in and out of the country. Her credit cards and bank book would indicate how
much money she had amassed while in the country and how she acquired or earned the same. The pictures and those
of the other persons shown therein are relevant to show her relationship to Lao and Chan.102

Contrary to the claim of the appellant, it is not true that the trial court failed to provide an interpreter when she
testified. The records show that a Cantonese interpreter attended the trial and interpreted her testimony. The Rules of
Court does not require the trial court to provide the appellant with an interpreter throughout the trial. An interpreter is
required only if the witness on the stand testifies in a language other than in English or is a deaf - mute. The appellant
may procure the services of an interpreter at her own expense.

Contrary to the claim of appellant Lee, the prosecution adduced proof beyond reasonable doubt of her guilt of the
crime charged. She and Lao, her lover, had joint possession of the shabu which the policemen found and confiscated
from her bedroom.

IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is GRANTED. The Decision of the
Regional Trial Court of Parañaque City, convicting him of the crime charged, is REVERSED AND SET ASIDE. The
said appellant is ACQUITTED of said charge. The Director of the Bureau of Corrections is hereby directed to release
the said appellant from detention unless he is detained for another cause or charge, and to submit to the Court, within
five (5) days from notice hereof, a report of his compliance with the directive of the Court.

The appeal of appellant Jogy Lee is DENIED. The Decision dated January 10, 1999, of the Regional Trial Court of
Parañaque City, convicting her of violation of Section 16, Rep. Act No. 6425 is AFFIRMED. No costs.
 [G.R. No. 89103. July 14, 1995.]

LEON TAMBASEN, Petitioner, v. PEOPLE OF THE PHILIPPINES, 2ND ASSISTANT PROVINCIAL PROSECUTOR

GLORIA LASTIMOSA MARCOS and HON. CICERO U. QUERUBIN in his capacity as Presiding Judge of the
Regional Trial Court of Negros Occidental, Branch 44, Bacolod City, Respondents.

Rodolfo V . Gumban and Jose J . Diaz for Petitioner.

Solicitor General for public Respondent.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANTS; ISSUANCE THEREOF FOR MORE THAN ONE
SPECIFIC OFFENSE PROHIBITED. — On its face, the search warrant violates Section 3, Rule 126 of the Revised Rules
of Court, which prohibits the issuance of a search warrant for more than one specific offense. The caption of Search
Warrant No. 365 reflects the violation of two special laws: P.D. No. 1866 for illegal possession of firearms,
ammunition and explosives; and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a
"scatter-shot warrant" and totally null and void.

2. ID.; ID.; ID.; SEIZURE OF ARTICLES NOT DESCRIBED THEREIN VIOLATIVE OF SECTION 2, ARTICLE III OF THE
1987 CONSTITUTION. — By their seizure of articles not described in the search warrant, the police acted beyond the
parameters of their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a
search warrant should particularly describe the things to be seized. "The evident purpose and intent of the
requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant —
to leave the officers of the law with no discretion regarding what articles they should seize, to the end that
unreasonable searches and seizures may not be made and that abuses may not be committed." The same
constitutional provision is also aimed at preventing violations of security in person and property and unlawful
invasions of the sanctity of the home, and giving remedy against such usurpations when attempted.

3. ID.; ID.; ID.; EVIDENCE OBTAINED IN VIOLATION OF RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE
INADMISSIBLE. — Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in violation of
the right against unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding.

DECISION

QUIASON, J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the order dated
July 20, 1989 of the Regional Trial Court (RTC), Branch 44, Bacolod City in Civil Case No. 5331, which nullified with
order earlier issued by the Municipal Trial Circuit Court (MTCC) of the City of Bacolod. The MTCC Order directed the
return to petitioner of the amount of P14,000.00 which had been seized by the police. chanrobles.com : virtual law library

I
On August 31, 1988, P/ Sgt. Flumar Natuel applied for the issuance of a search warrant from the MTCC, alleging that
he received information that petitioner had in his possession at his house at the North Capitol Road, Bacolod City, "M-
16 Armalite Rifles (Mags & Ammos), Hand Grenades, .45 Cal. Pistols (Mags & Ammos), Dynamite Sticks and
Subversive Documents," which articles were "used or intended to be used" for illegal purposes (Rollo, p. 14). On the
same day, the application was granted by the MTCC with the issuance of Search Warrant No. 365, which allowed the
seizure of the items specified in the application (Roll, p. 15).

At around 6:30 P.M. of September 9, 1988, a police team searched the house of petitioner and seized the following
articles: jgc:chanrobles.com.ph

"(1) Two (2) envelops containing cash in the total amount of P14,000.00 (one envelope P10,000.00 and another
P4,000.00);

(2) one (1) AR 280 handset w/antenae (sic) SN-00485;

(3) one (1) YAESU FM Transceiver FT 23R w/ Antenae (sic);

(4) one (1) ALINCO ELH 230D Base;

(5) one (1) DC Regulator Supply 150 V. 13.8 V 12 AMP — VAC;

(6) one (1) brown Academy Notebook & Assorted papers; and

(7) Four (4) handsets battery pack" (Rollo, p. 16).

On September 19, 1988, the MTCC acting on petitioners urgent motion for the return of the seized articles, issued an
order directing Sgt. Natuel to make a return of the search warrant. The following day, Sgt. Natuel submitted a report
to the court. Not considering the report as a "return in contemplation of law," petitioner filed another motion praying
that Sgt. Natuel be required to submit a complete and verified inventory of the seized articles. Thereafter, Sgt. Natuel
manifested that although he was the applicant for the issuance of the search warrant, he was not present when it was
served. cralawnad

On October 7, 1988, petitioner filed before the MTCC a motion praying that the search and seizure be declared illegal
and that the seized articles be returned to him. In his answer to the motion, Lt. Col. Nicolas Torres, the station
commander of the Bacolod City Police, said that the amount of P14,000.00 had been earmarked for the payment of
the allowance of the Armed City Partisan (ACP) and other "known NPA personalities" operating in the City of Bacolod.

On December 23, 1988, the MTCC issued an order directing Lt. Col. Torres to return the money seized to petitioner.
The court opined that in the implementation of the search warrant, any seizure should be limited to the specific items
covered thereby. It said that the money could not be considered as "subversive documents" ; it was neither stolen nor
the effects of gambling.

Three months later, the Solicitor General filed before the RTC Branch 44, Bacolod City a petition for certiorari seeking
the annulment of the order of the MTCC (Civil Case No. 5331). The petition alleged that assuming that the seizure of
the money had been invalid, petitioner was not entitled to its return citing the rulings in Alih v. Castro, 151 SCRA 279
(1987) and Roan v. Gonzales, 145 SCRA 687 (1986). In those cases, the Court held that pending the determination of
the legality of the seizure of the articles, they should remain in custodia legis. The petition also averred that a criminal
complaint for "any of the crimes against public order as provided under Chapter I, Title III of the Revised Penal Code"
had been filed with the City Fiscal (BC I.S. No. 88-1239) and therefore, should the money be found as having been
earmarked for subversive activities, it should be confiscated pursuant to Article 45 of the Revised Penal Code. chanrobles virtual lawlibrary

On July 20, 1989 RTC, Branch 44 issued an order granting the petition for certiorari and directing the clerk of court to
return to the MTCC the money pending the resolution of the preliminary investigation being conducted by the city
prosecutor on the criminal complaint. In said order, the RTC held: jgc:chanrobles.com.ph

"The Court observed that private respondent Leon Tambasen never questioned the validity of the search warrant
issued by respondent Judge Demosthenes L. Magallanes. A perusal of private respondent’s Motion to Declare Search
and Seizure Illegal and to Return Seized Properties’ dated October 7, 1988 shows that respondent Tambasen
questions not the validity of the search warrant issued by respondent Judge Demosthenes Magallanes, but rather, the
execution or implementation of the said warrant principally on the ground that the articles seized are not allegedly
mentioned in the search warrant. However, the question thus raised involves matters determinative of the
admissibility in evidence and the legality of the articles seized. These matters, it is submitted, go beyond the
immediate and limited jurisdiction of the respondent Judge to inquire into the validity of the search warrant he issued.
These issues which relate exclusively or principally with the intrinsic and substantive merits of the case or cases which
are being prepared against respondent Tambasen, and insofar as Tambasen is concerned involve matters of defense
which should be properly raised at the criminal action or actions that may be filed against respondent Leon Tambasen
(see DOH v. Sy Chi Siong Co., Inc. Et. Al., G.R. No. 85289, Feb. 20, 1989). They cannot be addressed to the
respondent Judge because the respondent Judge has no jurisdiction over the said issue. It is clear therefore that
respondent Judge has transcended the boundaries of his limited jurisdiction and had in effect encroached upon the
jurisdiction of the appropriate trial court or courts that will try the criminal case or cases against respondent Leon
Tambasen, in issuing the assailed order dated December 23, 1988. Ostensibly, the assailed order, if not corrected, will
unduly deprived the prosecution of its right to present the evidence in question and consequently will improperly oust
the trial court, which will try the criminal case or cases against private respondent Leon Tambasen of its original and
exclusive jurisdiction to rule on the admissibility and legality of the said evidence. This order of respondent court is
tantamount to a denial of due process. It may be considered as a grave abuse of discretion reviewable
by certiorari (Esparagoza v. Tan, 94 Phil. 749)" (Rollo , pp. 47-48).

Consequently, petitioner filed the instant petition for certiorari and prohibition praying for the issuance of a temporary
restraining order commanding the city prosecutor to cease and desist from continuing with the preliminary
investigation in BC I.S. No. 88-1239 and the RTC from taking any step with respect to Civil Case No. 5331. He also
prayed that Search Warrant No. 365 and the seizure of his personal effects be declared illegal and that the Order of
July 20, 1989 be reversed and annulled.

Petitioner contended that the search warrant covered three offenses:" (1) illegal possession of armalite rifle and .45
cal. pistol; (2) illegal possession of hand grenade and dynamite sticks; and (3) illegal possession of subversive
documents" (Rollo, pp. 3-4) in violation of Section 3 of Rule 126 of the Revised Rules of Court. He assailed the legality
of the seizure of the articles which were not mentioned in the search warrant. Moreover, since a complaint against
him was filed only after his house had been searched, petitioner claimed that the police were "on a fishing
expedition." cralaw virtua1aw library

During the pendency of the instant petition, a series of events related to the questioned search and seizure transpired.
At around 10:30 P.M. of March 1, 1990, Petitioner, who was then on board a passenger vehicle, was arrested by
intelligence operatives in Barangay Mandalagan, Bacolod City and forthwith detained. On the strength of sworn
statements of two rebel returnees, the police filed a complaint for subversion against petitioner with the Office of the
City Prosecutor. The following day, the City Prosecutor filed an information for violation of the Anti-Subversion Law
against petitioner with RTC, Branch 42, Bacolod City (Criminal Case No. 8517). An order for the arrest of petitioner
was issued on March 2, 1990.

On March 6, 1990, petitioner filed a motion to quash the information in Criminal Case No. 8517.

On March 15, 1990, RTC, Branch 42 granted petitioner’s motion to quash and recalled the warrant of arrest. The court
also directed the City Prosecutor to resolve BC-I.S. Case No. 88-1239.

On March 20, 1990, Assistant Provincial Prosecutor Gloria Lastimosa Marcos manifested before RTC, Branch 42 that
petitioner had been "dropped" from BC-I.S. No. 88-1239. However, the City Prosecutor had, by then, filed a motion
for the reconsideration of said Resolution of March 15, 1990. The motion was denied.

Under this factual matrix, this Court is confronted with the question of whether RTC, Branch 44 gravely abused its
discretion in directing that the money seized from petitioner’s house, specifically the amount of P14,000.00, be
retained and kept in custodia legis. 

On its face, the search warrant violated Section 3, Rule 126 of the Revised Rules of Court, which prohibits the
issuance of a search warrant for more than one specified offense. The caption of Search Warrant No. 365 reflects the
violation of two special laws: P.D. No. 1866 for illegal possession of firearms, ammunition and explosives; and R.A.
No. 1700, the Anti-Subversion Law. Search Warrant No. 365 was therefore a "scatter-shot warrant" and totally null
and void (People v. Court of Appeals, 216 SCRA 101 [1992]).

Moreover, by their seizure of articles not described in the search warrant, the police acted beyond the parameters of
their authority under the search warrant. Section 2, Article III of the 1987 Constitution requires that a search warrant
should particularly describe the things to be seized. "The evident purpose and intent of the requirement is no limit the
things to be seized to those, and only those, particularly described in the search warrant — to leave the officers of the
law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures
may not be made and that abuses may not be committed" (Corro v. Lising, 137 SCRA 541, 547 [1985]); Bache & Co.
[Phil.], Inc. v. Ruiz, 37 SCRA 823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). The same constitutional
provision is also aimed at preventing violations of security in person and property and unlawful invasions of the
sanctity of the home, and giving remedy against such usurpation’s when attempted (People v. Damaso, 212 SCRA
547 [1992] citing Alvero v. Dizon, 76 Phil. 637, 646 [1946]). cralawnad

Clearly then, the money which was not indicated in the search warrant, had been illegally seized from petitioner. The
fact that the members of the police team were doing their task of pursuing subversive is not a valid excuse for the
illegal seizure. The presumption juris tantum of regularity in the performance of official duty cannot by itself prevail
against the constitutionally protected rights of an individual (People v. Cruz, 231 SCRA 759 [1994]; People v. Veloso,
48 Phil. 169, 176 [1925]). Although public welfare is the foundation of the power to search and seize, such power
must be exercised and the law enforced without transgressing the constitutional rights of the citizens (People v.
Damaso, supra, citing Rodriguez v. Evangelista , 65 Phil. 230, 235 [1937]). As the Court aptly puts it in Bagalihog v.
Fernadez, 198 SCRA 614 (1991)," [z]eal in the pursuit of criminals cannot ennoble the use of arbitrary methods that
the Constitution itself abhors." cralaw virtua1aw library

For the retention of the money seized by the police officers, approval of the court which issued the search warrant is
necessary (People v. Gesmundo, 219 SCRA 743 [1993]). In like manner, only the court which issued the search
warrant may order their release (Templo v. Dela Cruz, 60 SCRA 295 [1974]; Pagkalinawan v. Gomez, 21 SCRA 1275
[1967]).

Section 3(2) of Article III of the 1987 Constitution provides that evidence obtained in violation of the right against
unreasonable searches and seizured shall be inadmissible for any purpose in any proceeding.

The information in Criminal Case No. 8517, with petitioner as the sole accused, was ordered quashed by the trial court
and the prosecution’s motion for the reconsideration of the quashal order had been denied. Even in BC I.S. Case No.
88-1239, which was being investigated by Assistant Provincial Prosecutor Marcos, petitioner was dropped as
aRespondent. Hence, there appears to be no criminal prosecution which can justify the retention of the seized articles
in custodia legis.

A subsequent legal development added another reason for the return to him of all the seized articles: R.A. No. 1700,
the Anti-Subversion Law, was repealed by R.A. No. 7636 and, therefore, the crimes defined in the repealed law no
longer exist. chanrobles.com.ph : virtual law library

WHEREFORE, the petition is GRANTED and the People of the Philippines is ORDERED to RETURN the money seized to
petitioner.
 [G.R. NO. 153254 : September 30, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. EDEN DEL CASTILLO, Appellant.

DECISION

AUSTRIA-MARTINEZ, J.:

Eden del Castillo appeals from the decision dated June 27, 20011 of the Regional Trial Court of Cebu City, Branch 18,
in Criminal Case No. CBU-54778, finding her guilty of violation of Section 16, Article III of R.A. No. 6425, otherwise
known as Dangerous Drugs Act of 1972, as amended; and imposing on her the penalty of reclusion perpetua.

She was indicted under an Information dated August 2, 2000 which reads:

That on or about the 31st day of July 2000, at about 10:30 A.M., in the City of Cebu, Philippines, and within the

jurisdiction of this Honorable Court, the said accused, with deliberate intent and without being authorized by law, did

then and there have in her possession and control or use the following:

A - Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86 grams;

B - Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33 grams;

C - Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75 grams

locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug, without the corresponding

license or prescription.

CONTRARY TO LAW.2

Upon her arraignment, appellant, with the assistance of counsel, pleaded not guilty to the crime charged.3 Trial
thereafter ensued.

The prosecution presented the following witnesses: PO3 Leopoldo Bauzon, PO3 Alfredo Petallar, P/Insp. Mutchit
Salinas and PO2 Brazilio Borinaga. Their testimonies proved the following facts:

On July 21, 2000, a search warrant was issued by Judge Isaias Dican of the Regional Trial Court, Branch 11, Cebu

City, authorizing the search and seizure of shabu and its paraphernalias in the house of appellant located in M.

Borgonia Street, Hayco, Mabolo, Cebu City.4 At about 10:30 in the morning of July 31, 2000, a team composed of

Police Chief/Insp. Pablo Gacayan Labra II, Bauzon, Petallar and Borinaga, PO2 Ricardo Baclayon, Jr. and PO1 Jeric

Cuyos Toring, went to the subject house to implement the search warrant.5 The police officers accompanied by

three barangay tanods, namely: Wilfredo Wasawas, Mansueto Toong and Leonico Sagosa, entered the house, saw

appellant and served the warrant on her.6 At that time, appellant was with her grandmother Elena Rivaral Garcia, the

registered owner of the house, and Servando del Castillo, appellant's brother, in the living room. The police officers

"pressed" them by telling them not to move and they were asked to just sit down while the search was on-going.7
The raiding team divided themselves into two searching groups. The first group composed of Bauzon, Toring and
one barangay tanod searched the upper portion of the house and found three large plastic packs of white crystalline
substance.8 The second group, composed of Baclayon and Borinaga, searched the ground floor and found eight
medium heat-sealed plastic packs of white crystalline substance and fifty-three heat-sealed plastic packets of white
crystalline substance; two disposable lighters, one pair of scissors, one tooter, one puller and an improvised
hacksaw.9 Servando voluntarily surrendered five small packs of white crystalline substance.10 Appellant was arrested
and informed of her constitutional rights, specifically, the right to counsel to which she replied that she has a lawyer
who will represent her.11 Petallar then prepared an inventory of the seized articles and appellant was made to sign the
same.12 PO3 Bauzon and PO3 Petallar explained that the inventory receipt was dated July 24, 2000 although the raid
was conducted on July 31 because their office had earlier prepared the blank form.13 A copy of the inventory was given
to a tanod14 and thereafter appellant and Servando were brought to the police station while the items seized were
brought to the Philippine National Police (PNP) Crime Laboratory for examination.15

P/Insp. Mutchit Salinas, chemist of the PNP Regional Crime Laboratory Office, who conducted the laboratory test on
these substances confirmed that the specimens submitted for testing were positive for the presence of
methamphetamine hydrochloride known as shabu.16

The defense presented the following witnesses: Elena R. Garcia, Jaime Garcia and appellant herself who testified to
establish the following facts:

The house subject of the search on July 31, 2000 was owned by Elena, appellant's grandmother, and her late

husband, Jose Garcia, as evidenced by a copy of Tax Declaration No. 01-30651 in the name of Jose Garcia;17 that only

Brent Lepiten, Elena's grandson, was living in the house while appellant was living with her parents in San Vicente

Village, Wireless, Mandaue City, a distance of about five kilometers from Elena's place.18 On July 31, 2000, Elena, who

was in the upper portion of the house with her son, Jaime, who happened to sleep in her house the night before

because he had a drinking spree with some friends, went downstairs because of the thudding sound from their

door.19 Appellant, who was in the house to visit her grandmother, was having breakfast when the door was opened.

Several men entered the house and instructed them to sit down. Two of these men carrying an envelope went

upstairs and woke up Jaime Garcia.20 Jaime then went downstairs and these two men without the envelope followed

two minutes later.21 Appellant and the other occupants were told to wait for the arrival of the tanods. Then, the same

two men who earlier went upstairs went up again with a tanod and when they came down, they had with them an

envelope, the contents of which were spread on the table and were listed down.22 Appellant was then asked to sign a

paper where a listing of the

contents of the envelope was made but she requested to contact her lawyer which was denied.23 She was forced to

sign otherwise she would be handcuffed.24 The list of the inventory was neither read to her nor did they leave a copy

for her or to any of the occupants.25 Appellant declared that the search warrant was served on her but she never read

it nor was it read to her.26

On June 27, 2001, the trial court rendered its assailed decision27 finding appellant guilty as charged. The decretal
portion of the decision reads:
WHEREFORE, finding accused Eden del Castillo guilty beyond reasonable doubt of the crime charged, the accused is

hereby sentenced to suffer the penalty of Reclusion Perpetua. The seized or confiscated items are declared forfeited in

favor of the government and the same shall be disposed of in the manner allowed by law.28

In convicting appellant, the trial court ratiocinated:

After a careful analysis of the testimonial and documentary evidence on record, the Court is of the well considered

view and so holds that the prosecution was able to establish the fact that the accused had indeed, with deliberate

intent and without being authorized by law, in her possession and control or use on or about July 31, 2000 at about

10:30 A.M. the following:

A - Three (3) big heat sealed plastic packs of white crystalline substance weighing 294.86 grams;

B - Eight (8) medium heat sealed plastic packs of white crystalline substance weighing 12.33 grams;

C - Fifty three (53) heat sealed plastic packets of white crystalline substance weighing 4.75 grams

locally known as "shabu", containing Methylamphetamine Hydrochloride, a regulated drug, without the corresponding

license or prescription. The members of the Philippine National Police (PNP), by virtue of a Search Warrant issued

against Eden Garcia del Castillo by Judge Isaias Dican and implemented on July 31, 2000 resulted in the acquisition of

said items. The items were submitted to the PNP Crime Laboratory for analysis and the result is positive for the

presence of Methylamphetamine Hydrochloride, or locally known as shabu. No less than the accused signed the

Receipt for Confiscated Articles signifying that the Raiding Team of the Philippine National Police had actually seized

and confiscated certain items or articles from the herein accused. The prosecution then was able to establish the guilt

of the accused beyond reasonable doubt.

Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as
amended by R.A. 7659 reads as follows:

SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging from

five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any

regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.

Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous Drugs Act of 1972, as amended
by R.A. 7659 reads as follows:

SEC. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the Crime. - The

penalties for offenses under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of

this Act shall be applied if the dangerous drugs involved is in any of the following quantities:

...
3. 200 grams or more of shabu or methylampetamine hydrochloride; . . .29

Hence, the instant appeal with the following assignment of errors:30

THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT A CLEAR AND DISTINCT FINDINGS OF FACTS

(WHICH) PROVED THAT ACCUSED DID NOT OWN THE HOUSE WHICH WAS SEARCHED.

II

THE LOWER COURT ERRED IN FAILING TO STATE IN ITS JUDGMENT THAT THE ARTICLES SEIZED BY VIRTUE OF A

SEARCH WARRANT WERE NOT TURNED OVER TO THE ISSUING COURT IN VIOLATION OF THE LAW.

III

THE LOWER COURT ERRED IN NOT FINDING THAT THE RAIDING TEAM FAILED TO ISSUE A DETAILED RECEIPT OF

SEIZED ARTICLES AND TO GIVE A COPY THEREOF TO THE LAWFUL OCCUPANT IN VIOLATION OF THE LAW.

IV

THE LOWER COURT ERRED IN NOT FINDING THAT BY THE RAIDING TEAM ORDERING ACCUSED TO SIGN THE

INVENTORY AFTER THE ARREST WITHOUT THE ASSISTANCE OF COUNSEL IS VIOLATIVE OF HER CONSTITUTIONAL

RIGHT.

THE LOWER COURT ERRED IN NOT FINDING THAT THE RAID WAS IN VIOLATION OF THE PRIVACY OF ELENA R.

GARCIA, AS OWNER OF THE HOUSE BEING SEARCHED, AND NOT THE HOUSE OF ACCUSED EDEN DEL CASTILLO.

VI

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED.

The Office of the Solicitor General (OSG) filed a Manifestation and Motion in lieu of appellee's brief praying that the
decision under consideration be reversed and set aside and that the appellant be acquitted.

We agree with the OSG. The appeal is meritorious.

Section 16 of Article III of the Dangerous Drugs Act of 1972, as amended, provides:

SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging from

five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any

regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof.
The essential elements of the crime of possession of regulated drugs are the following: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized by law or by duly constituted authorities; and, (c) the
accused has knowledge that the said drug is a regulated drug.

In People v. Tira,31 we explained the concept of possession of regulated drugs, to wit:

This crime is mala prohibita, and as such, criminal intent is not an essential element. However, the prosecution must

prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes

not only actual possession, but also constructive possession. Actual possession exists when the drug is in the

immediate physical possession or control of the accused. On the other hand, constructive possession exists when the

drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over

the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if

his right to exercise control and dominion over the place where the contraband is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive possession would
not exonerate the accused. Such fact of possession may be proved by direct or circumstantial evidence and any
reasonable inference drawn therefrom. However, the prosecution must prove that the accused had knowledge of the
existence of the presence of the drug in the place under his control and dominion and the character of the drug. Since
knowledge by the accused of the existence and character of the drugs in the place where he exercises dominion and
control is an internal act, the same may be presumed from the fact that the dangerous drugs is in the house or place
over which the accused has control or dominion, or within such premises in the absence of any satisfactory
explanation.

Prosecution witnesses failed to establish that the house where the shabu and other shabu paraphernalias were found
belongs to appellant. On the other hand, defense evidence clearly showed that the subject house belongs to
appellant's grandmother, Elena Garcia, who testified in direct examination as follows:

ATTY. RIVERAL:

Q You stated in your personal circumstances that you are a resident of Mabolo, Cebu City. Do you own a house? chanroblesvirtualawlibrary

A Yes, I owned a house.

Q With whom are you living therewith? chanroblesvirtualawlibrary

A My grandson.

Q What is the name of your grandson living with you at that house? chanroblesvirtualawlibrary

A Brent Lepiten.

Q You stated that you owned a house in Mabolo, Cebu City which was the subject of the search. Do you have any

evidence to show that you owned that house? chanroblesvirtualawlibrary

A Yes, I have.
Q Showing to you this machine copy which is Tax Declaration No. 01-30651 in the name of Jose Garcia. Is this the tax

declaration evidencing your ownership and possession of your house? chanroblesvirtualawlibrary

A Yes, that is the one.

Q How are you related to Jose Garcia? chanroblesvirtualawlibrary

A My husband.

Q Where is he now? chanroblesvirtualawlibrary

A He is already dead.

ATTY. RIVERAL:

We request Your Honor that the machine copy of the tax declaration be marked as our Exhibit "1".

COURT:

Mark it.

ATTY. RIVERAL:

Q The house which you mentioned belongs to you, how many storeys are there? chanroblesvirtualawlibrary

A Two storeys.

ATTY. RIVERAL:

Q You mean the ground floor and the upper portion? chanroblesvirtualawlibrary

A Yes, sir.

Q Where do you usually take your rest in the evening? chanroblesvirtualawlibrary

A In the upper portion.

Q Do you know accused Eden del Castillo? chanroblesvirtualawlibrary

A Yes, she is one of my grandchildren.

Q Where is she living? chanroblesvirtualawlibrary

A San Vicente Village, Wireless, Mandaue City.

Q Is accused Eden del Castillo still single? chanroblesvirtualawlibrary

A She is still single.

Q With whom is she living with before the arrest? chanroblesvirtualawlibrary

A Together with her auntie Edna Aballe.

Q How about her parents? chanroblesvirtualawlibrary

A Sometime(s) when they traveled at Badian only Eden is in the house together with her auntie but they stayed in

their house.

Q On July 31, 2000 in that evening who was sleeping at the upper portion of your house? chanroblesvirtualawlibrary

A Myself and my grandson.

Q You are mentioning of Jaime, who is this Jaime? chanroblesvirtualawlibrary

FISCAL LABORTE:

The witness was only asked who slept at the upper portion and she answered myself and my grandson.

ATTY. RIVERAL:

Q You mentioned one Jaime Garcia, why was he there? chanroblesvirtualawlibrary

A This Jaime was able to sleep in the house at that time considering that his wife was abroad.

...

ATTY. RIVERAL:

Q That Jaime Garcia you said where did he take his rest that night? chanroblesvirtualawlibrary

A At our house.

Q In what portion thereof? chanroblesvirtualawlibrary

A At the upper portion.32

The evidence of the prosecution failed to establish by competent evidence that appellant is the owner or at least
shared the ownership of the house where the shabu was found. PO3 Petallar testified that based on their own casing
operation, appellant frequented the subject house to eat meals;33 that they were not sure that the house was owned
by appellant but only believed that she had belongings therein since she frequented the same.34 PO2 Borinaga testified
it was a public knowledge that appellant was living in the subject house since she was a child.35 Thus, there is no
competent evidence that appellant had control and dominion over the place where the shabu was found. The claim of
appellant that she has her residence in San Vicente Village, Wireless, Mandaue City and that she was only a visitor in
the house that belongs to her grandmother at the time of the search was not rebutted by convincing evidence.

While it is not necessary that the property to be searched or seized should be owned by the person against whom the
search warrant is issued, however, there must be sufficient showing that the property is under appellant's control or
possession.36

The prosecution likewise failed to prove appellant's possession of the shabu at the time of her arrest. It bears
stressing that at the time the raiding team conducted the search, appellant and the other occupants were asked to
stay in the living room. PO3 Petallar did not find any drugs on appellant's body nor was there anything unusual or
suspicious noted in her person.37

Notably, the policemen testified that they found the shabu in the upper portion of the house, however, it was not
shown at all in whose room it was found. In fact, the defense evidence showed that at the time the two policemen
went upstairs, Jaime Garcia, appellant's uncle, was asleep and was awakened by the policemen who asked him to go
down. This was corroborated by PO2 Borinaga who testified on cross-examination that while he was downstairs, there
was a person upstairs who came down.38 Moreover, it was appellant's grandmother and the latter's grandson, Brent,
who were staying in the upper portion of the house. Also, the shabu found at the ground floor of the house does not
conclusively establish that it belongs to appellant since it was not found together with the other things of appellant. To
reiterate, she was not the only person who had access to the entire house. In fact, it was also shown by the
prosecution that a certain Servando, appellant's brother, voluntarily surrendered five small plastic packs of white
crystalline substance. We find that the prosecution failed to prove convincingly that the seized shabu belonged to
appellant.

Moreover, the manner in which the search was conducted on the subject house failed to comply with the mandatory
provisions of Section 8 (formerly Section 7), Rule 126 of the Rules of Court, which provides:

SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses - No search of a house, room,

or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family

or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Clearly, the search of the house must be done in the presence of the lawful occupants and it is only in the absence of
the former that two witnesses of sufficient age and discretion residing in the same locality may be called upon to
witness the search. While appellant and the other occupants of the house were present during the search, they were
not allowed to actually witness the search of the premises. They were in the words of the policemen "pressed," i.e.,
they were asked to stay put in the sala where they were seated while the simultaneous search was on-going in the
upper and lower portions of the house.39 They should be the ones that should have accompanied the policemen while
the search was being done and not substituted by the barangay tanods in their stead. We held in People v. Go:40

As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor,

which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of

either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was handcuffed to a

chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually

observing and monitoring the search of the premises, violates both the spirit and the letter of the law:
Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the manner in

which the search was conducted by the police authorities. The accused-appellant was seated at the sala together with

Sgt. Yte when they heard someone in the kitchen uttered "ito na". Apparently, the search of the accused-appellant's

house was conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no

search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof or

any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and

discretion residing in the same locality. This requirement is mandatory to ensure regularity in the execution of the

search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code.

As we have ruled in Eduardo Quintero v. The National Bureau of Investigation, et al., a procedure, wherein members

of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses

available as prescribed by law are made to witness a search conducted by the other members of the raiding party in

another part of the house, is violative of both the spirit and letter of the law.

That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment.

The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of

the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by "two

witnesses of sufficient age and discretion residing in the same locality" only in the absence of either of the lawful

occupant of the premises or any member of his family. Thus, the search of appellant's residence clearly should have

been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to

substitute their choice of witnesses for those prescribed by the law.

...

The search conducted by the police officers of appellant's residence is essentially no different from that in People v.

Del Rosario where this Court observed:

We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated at the

residence of the accused-appellant. In consequence, the manner the police officers conducted the subsequent and

much delayed search is highly irregular. Upon barging into the residence of the accused-appellant, the police officers

found him lying down and they immediately arrested and detained him in the living room while they searched the

other parts of the house. Although they fetched two persons to witness the search, the witnesses were called in only

after the policeman had already entered accused-appellant's residence (PP. 22-23, tsn, December 11, 1991), and

therefore, the policemen had more ample time to plant the shabu. Corollary to the Constitutional precept that, in all

criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Section 14[2], Article III,

Constitution of the Republic of the Philippines) is the rule that in order to convict an accused the circumstances of the

case must exclude all and each and every hypothesis consistent with his innocence (People v. Tanchoco, 76 Phil 463

[1946]; People v. Constante, 12 SCRA 653[1964]; People v. Jara, 144 SCRA 516[1986]). The facts of the case do not

rule out the hypothesis that accused-appellant is innocent.

We also find that the raiding team failed to comply with the procedures on search and seizures provided under
Sections 11 and 12, Rule 126 of the Rules on Criminal Procedure, to wit:

SEC. 11. Receipt for the property seized. - The officer seizing the property under the warrant must give a detailed

receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or

in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion

residing in the same locality, leave a receipt in the place in which he found the seized property.

SEC. 12. Delivery of property and inventory thereof to the court. - The officer must forthwith deliver the property

seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

Clearly, the detailed receipt of the inventory must be given to the lawful occupant. In this case, however, PO3 Petallar
admitted that the inventory receipt was given to thebarangay tanod41 despite the presence of the appellant and her
grandmother which is a violation of the rule.

Likewise, the police officers failed to deliver the seized items to the court which issued the search warrant. It was
commanded in the search warrant that the seized articles be brought to the court which issued it to be dealt with as
the law directs. Under the rule, the seized property must be delivered by the officer to the judge who issued the
warrant. It must be accompanied with a true inventory thereof duly verified. The police officers all testified that the
confiscated shabu was brought to the PNP Crime Laboratory for examination. Faced with the same circumstance, we
held in People v. Gesmundo:42

On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes judicial notice of the

usual practice of the San Pablo City police force of retaining possession of confiscated specimens suspected of being

marijuana by immediately forwarding them to the NBI or to an NBI accredited physician for preliminary examination

and/or laboratory examination before filing a case with the city prosecutor's office. The mere tolerance by the trial

court of such a practice does not make it right. Clearly, such practice violates the mandatory requirements of the law

and defeats the very purpose for which they were enacted. Speculations as to the probability of tampering with the

evidence cannot then be avoided.

The trial judge cites the case of Yee Sue Koy, et al v. Mariano Almeda, et al. (70 Phil 141) to justify the retention by

the police and the NBI of the custody of the allegedly confiscated specimens. While in said decision, this court

recognized the fact that the objects seized were retained by the agents of the Anti-Usury Board, instead of being

turned over to the Justice of the Peace of Sagay, yet the Court also held that it was "for the reason that the custody of

said agents is the custody of the issuing officer or court, the retention having been approved by the latter." Thus,

approval by the court which issued the search warrant is necessary for the retention of the property seized by the

police officers; and only then will their custody be considered custody of the court. Absent such approval, the police

officers have no authority to retain possession of the marijuana and more so, to deliver the property to another

agency, like the NBI.43

Moreover, the inventory receipt was not certified under oath by any of the members of the raiding team as required
by the rule but was signed only by appellant and her brother.
The trial court erred in relying on the receipt of confiscated articles to establish that the raiding team had actually
seized the listed items therein. First, it is highly irregular that the inventory receipt was dated July 24, 2000 when the
actual raid was conducted on July 31, 2000. We find the explanation unacceptable given that the receipt was already
prepared earlier than the search. Such discrepancy affects the integrity of the inventory receipt. Second, appellant
signed the receipt without the assistance of counsel. It was established that at the time she signed the receipt, she
was already under custodial investigation. The testimony of PO3 Petallar is revealing:

Q When you saw the articles seized you were of the impression that they were illegal? chanroblesvirtualawlibrary

A Yes, sir.

Q Because of that impression you held Eden del Castillo in custody of the law? chanroblesvirtualawlibrary

A Yes, sir.

Q You handcuffed Eden del Castillo immediately? chanroblesvirtualawlibrary

A No, we do (sic) not handcuffed (sic) Eden del Castillo.

Q Although you do (sic) not handcuffed (sic) Eden del Castillo, the accused but virtually she was already held in

custody of the law? chanroblesvirtualawlibrary

A We effected the arrest.

Q So you begun listing down the articles which is supposedly seized? chanroblesvirtualawlibrary

A Upon the delivery of the seized articles from the searching parties I began listing.

Q You listed the articles in that prepared form, correct? chanroblesvirtualawlibrary

A Yes, sir.44

Q In your joint affidavit, you stated in paragraph 7 "That we informed her Constitutional Right provided under the

1987 Phil. Constitution?"

A Yes, sir.

Q You informed her of her right under the Constitution because you wanted her to claim ownership of the seized

articles? chanroblesvirtualawlibrary

A We just informed her about her constitutional right.

Q So that after informing her of her constitutional right she signed this receipt or inventory of seized articles, correct?

chanroblesvirtualawlibrary
A Yes, sir.

Q So you asked her by interrogation or question whether or not you will concur to the entries listed in this inventory?

chanroblesvirtualawlibrary

A Yes, sir.

Q You also asked her that the search was conducted in a very orderly manner? chanroblesvirtualawlibrary

A Yes, sir.

Q You also asked her that nothing was destroyed or lost inside the house? chanroblesvirtualawlibrary

A Yes, sir.

Q That you also asked her that the members of the raiding team did not in any manner subjected (sic) them to

unreasonable treatment? chanroblesvirtualawlibrary

A Yes, sir.

Q And that they were not exposed to embarrassment? chanroblesvirtualawlibrary

A Yes, sir.

Q Since you shoot (sic) several questions and informing her of the constitution(al) right(s) under the 1987

Constitution did you tell her that you have the right to be assisted by counsel? chanroblesvirtualawlibrary

A I told her that.

...

COURT:

Q After you had told the accused that she is entitled to have counsel now what did the accused say, if any? chanroblesvirtualawlibrary

A She told me that she would get a lawyer.

ATTY. RIVERAL:

Q In effect, did she get a lawyer? chanroblesvirtualawlibrary

A Not immediately.

...
Q Thereafter was she able to get a lawyer? chanroblesvirtualawlibrary

A When we arrived at the camp her sister told us that she had already hired a lawyer.

Q In effect, did that lawyer appear in the camp? chanroblesvirtualawlibrary

A I never saw.

Q So accused would (sic) sign (sic) that instrument without the assistance of counsel? chanroblesvirtualawlibrary

A Yes, sir.45

While PO3 Petallar testified that appellant was read her constitutional right, it was not clearly shown that she was
informed of her right not to sign the receipt and that it can be used as an evidence against her. If appellant was
indeed informed of her constitutional right, it is unusual for her to sign the receipt acknowledging ownership of the
seized items without the assistance of counsel considering that she wanted to get a lawyer. In People v. Go,46 we
found the inventory receipt signed by appellant inadmissible for being violative of her custodial right to remain silent,
thus:

After the inventory had been prepared, PO2 Abulencia presented it to appellant for his signature without any showing

that appellant was informed of his right not to sign such receipt and to the assistance of counsel. Neither was he

warned that the same could be used as evidence against him. Faced with similar circumstances, this Court in People

v. Gesmundo stated:

It is true that the police were able to get an admission from the accused-appellant that marijuana was found in her

possession but said admission embodied in a document entitled "PAGPAPATUNAY" previously prepared by the police,

is inadmissible in evidence against the accused-appellant for having been obtained in violation of her rights as a

person under custodial investigation for the commission of an offense. The records show that the accused-appellant

was not informed of her right not to sign the document; neither was she informed of her right to the assistance of

counsel and the fact that the document may be used as evidence against her.

In People v. Policarpio, this Court held that such practice of inducing suspects to sign receipts for property allegedly

confiscated from their possession is unusual and violative of the constitutional right to remain silent, viz:

What the records show is that appellant was informed of his constitutional right to be silent and that he may refuse to

give a statement which may be used against him, that is why he refused to give a written statement unless it is made

in the presence of his lawyer as shown by the paper he signed to this effect. However, he was made to acknowledge

that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a receipt and to sign

a receipt for the P20.00 bill as purchase price of the dried marijuana leaves he sold to Pat. Mangila.

Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect are
extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign
receipts for what were taken from him. It is the police officers who confiscated the same who should have signed such
receipts. No doubt this is a violation of the constitutional right of the appellant to remain silent whereby he was made
to admit the commission of the offense without informing him of his right. Such a confession obtained in violation of
the Constitution is inadmissible in evidence.

The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellant's custodial right
to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the
search of appellant's residence.

Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and
intelligent. To insure that a waiver is voluntary and intelligent, the Constitution47 requires that for the right to counsel
to be waived, the waiver must be in writing and in the presence of the counsel of the accused.48 There is no such
written waiver in this case, much less was any waiver made in the presence of the counsel since there was no counsel
at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory receipt without the
assistance of counsel which is a violation of her right under the Constitution.

In all criminal cases, it is appellant's constitutional right to be presumed innocent until the contrary is proved beyond
reasonable doubt. Thus in People v. Del Norte,49 we said:

We detest drug addiction in our society. However, we have the duty to protect appellant where the evidence

presented shows "insufficient factual nexus" of her participation in the commission of the offense charged. In People

v. Laxa, we held:

The government's drive against illegal drugs deserves everybody's support. But it cannot be pursued by ignoble

means which are violative of constitutional rights. It is precisely when the government's purposes are beneficent that

we should be most on our guard to protect these rights. As Justice Brandeis warned long ago, "the greatest dangers

to liberty lurk in the insidious encroachment by men of zeal, well meaning without understanding."

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE on the ground that the prosecution failed to
establish the guilt of appellant Eden del Castillo. She is hereby ACQUITTED of the crime charged against her and her
immediate release from confinement is hereby ordered unless she is lawfully held in custody for another cause.

The Director of the Bureau of Corrections is ordered to forthwith implement this decision and to inform this Court,
within ten (10) days from receipt hereof, of the date appellant was actually released from confinement.

The shabu and other shabu paraphernalias seized during the search are forfeited in favor of the State.
 [G.R. No. 139301.  September 29, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. HUANG ZHEN HUA and JOGY

LEE, appellants.

DECISION
This is an appeal from the Decision  of the Regional Trial Court (RTC) of Parañaque
[1]

City, Metro Manila, Branch 259, convicting the appellants of violation of Section 16, Article
III of Republic Act No. 6425, as amended.

The Case for the Prosecution

Police operatives of the Public Assistance and Reaction Against Crime (PARAC)
under the Department of Interior and Local Government received word from their
confidential informant that Peter Chan and Henry Lao,  and appellants Jogy Lee and
[2]

Huang Zhen Hua were engaged in illegal drug trafficking.  The policemen also learned
that appellant Lee was handling the payments and accounting of the proceeds of the
illegal drug trafficking activities of Lao and Chan.  PO3 Belliardo Anciro, Jr. and other
[3]

police operatives conducted surveillance operations and were able to verify that Lao and
appellant Lee were living together as husband and wife.  They once spotted Chan, Lao,
the appellants and two others, in a seafood restaurant in Bocobo Street, Ermita, Manila,
late in the evening.  On another occasion, the policemen saw Chan, Lao, and the
appellants, at the Celicious Restaurant along R. Sanchez Street, Ermita, Manila, at about
8:30 p.m.  They were spotted the third time at the Midtown Hotel at about 7:00 p.m. to
8:00 p.m.  The police operatives also verified that Chan and Lao resided at Room Nos.
[4]

1245 and 1247, Cityland Condominium, De la Rosa Street, Makati City, and in a two-
storey condominium unit at No. 19 Atlantic Drive, Pacific Grand Villa, Sto. Niño,
Parañaque, Metro Manila. [5]

On October 25, 1996, SPO2 Cesar N. Teneros of the PARAC secured Search Warrant
No. 96-801 for violation of Presidential Decree (P.D.) No. 1866 (illegal possession of
firearms and explosives) and Search Warrant No. 96-802, for violation of Sections 12, 14
and 16 of Rep. Act No. 6425, as amended, from Judge William M. Bayhon, Executive
Judge of the RTC of Manila.   Senior Police Inspector Lucio Margallo supervised the
[6]

enforcement of Search Warrant No. 96-801 at the Cityland Condominium at about 11:00
p.m. on October 29, 1996.  With him were PO3 Anciro, Jr., PO3 Wilhelm Castillo, SPO3
Roger Ferias and seven other policemen of the PARAC, who were all in uniform, as well
as a Cantonese interpreter by the name of Chuang.  While no persons were found inside,
the policemen found two kilos of methamphetamine hydrochloride, popularly known
as shabu, paraphernalia for its production, and machines and tools apparently used for
the production of fake credit cards. [7]
 Thereafter, the police operatives received information that Lao and Chan would be
delivering shabu at the Furama Laser Karaoke Restaurant at the corner of Dasmariñas
and Mancha Streets, Manila.  The policemen rushed to the area on board their vehicles.  It
was 2:00 a.m. of October 26, 1996.  The policemen saw Chan and Lao on board the
latter’s Honda Civic car.  As the two men alighted, one of the men approached them and
introduced himself, but Chan and Lao fired shots.  Thus, a shoot-out ensued between the
members of the raiding team and the two suspects.  Chan and Lao were shot to death
during the encounter.  The policemen found two plastic bags, each containing one kilo
of shabu, in Lao’s car.
The policemen then proceeded to No. 19 Atlantic Drive, Pacific Grand Villa, to enforce
Search Warrant No. 96-802.  When the policemen arrived at the place, they coordinated
with Antonio Pangan, the officer in charge of security in the building.  The men found that
[8]

the Condominium Unit No. 19 was leased to Lao under the name Henry Kao Tsung. The
policemen, Pangan and two security guards of the Pacific Grand Villa proceeded to the
condominium unit.  Anciro, Jr. knocked repeatedly on the front door, but no one
responded.  Pangan, likewise, knocked on the door. Appellant Lee peeped through the
[9]

window beside the front door.  The men introduced themselves as policemen,  but the
[10] [11]

appellant could not understand them as she could not speak English.  The policemen
[12]

allowed Pangan to communicate with appellant Lee by sign language and pointed their
uniforms to her to show that they were policemen.  The appellant then opened the door
and allowed the policemen, Pangan and the security guards into the condominium unit.
 The policemen brought appellant Lee to the second floor where there were three
[13]

bedrooms – a master’s bedroom and two other rooms.  When asked where she and Lao
slept, appellant Lee pointed to the master’s bedroom.  Anciro, Jr., Margallo and PO3
[14]

Wilhelm Castillo then searched the master’s bedroom, while Ferias and Pangan went to
the other bedroom where appellant Zhen Hua was sleeping.  Ferias awakened appellant
[15]

Zhen Hua and identified himself as a policeman.  Appellant Zhen Hua was surprised. [16]

Anciro, Jr. saw a small cabinet inside the master’s bedroom about six feet high.  He
stood on a chair, opened the cabinet and found two transparent plastic bags each
containing one kilo ofshabu,  a feeding bottle, a plastic canister  and assorted
[17] [18]

paraphernalia.  Inside the drawer of the bed’s headboard, Anciro, Jr. also found assorted
[19]

documents, pictures, bank passbooks issued by the Allied Banking Corporation, credit
cards, passports and identification cards of Lao and Lee.  Anciro, Jr. asked appellant Lee
[20]

who was the owner of the crystalline substance, but the latter did not respond because
she did not know English.  Anciro, Jr. asked Margallo for instructions on what to do with
[21]

the things he had found, and the latter told him to keep the same for future reference,
 and as evidence against any other suspect for illegal drug transactions.  Anciro, Jr.,
[22] [23]

Pangan and Margallo later showed the seized articles to the other members of the team. [24]

Anciro, Jr. told appellant Lee to bring some of her clothes because they were bringing
her to the PARAC headquarters.  Appellant Lee did as she was told and took some
clothes from the cabinet in the master’s bedroom where Anciro, Jr. had earlier found
the shabu.[25]
 The policemen brought the appellants to the PARAC headquarters. The following
articles were found and confiscated by the policemen in the condominium unit:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) Kilo each of white crystalline
granules later tested to be  Methamphetamine Hydrochloride  or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing an undetermined quantity of
suspected Shabu;

c. ONE (1) Small Plastic Cannister also containing undetermined amount of suspected Shabu ….

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for

sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;[26]

Anciro, Jr. placed the articles he found in the cabinet inside a box.  The appellants
[27]

were then brought to the PARAC headquarters where they were detained.  Pangan signed
a Certification  that the search conducted by the policemen had been orderly and
[28]

peaceful.  Anciro, Jr. affixed his initials on the transparent plastic bags and their contents,
the transparent baby feeding bottle and the plastic cannister and their contents.  On
October 26, 1996, he and Ferias  brought the seized items to the PNP Crime Laboratory
[29]

for laboratory examination  along with the letter-request  thereon.

[30] [31]

On the same day, Forensic Chemist Officer Isidro L. Cariño signed Chemistry Report
No. D-1243-96 which contained his findings on the laboratory examination of the items
which were marked as Exhibits “A” to “A-4,” viz:

SPECIMEN SUBMITTED:

Exh. “A”  – One (1) “must de Cartier Paris” carton containing the following:

Exh. “A-1” – One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white
crystalline substance.

Exh. “A-2” – One (1)  heat-sealed transparent plastic bag containing 998.10 grams of white
crystalline substance.

Exh. “A-3” – One (1) transparent plastic “Babyflo Nurser” feeding bottle with pink cover
containing 18.52 grams of white crystalline substance.

Exh. “A-4” – One (1) transparent plastic container with white cover containing 3.28 grams of white
crystalline substance.

NOTE: The above-stated  specimen were allegedly taken from the residence of the above-named
subjects.  xxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of prohibited and/or regulated drug.

FINDINGS:

Qualitative examination conducted on the above-stated specimens, Exhs. “A-1” through “A-4”
gave POSITIVE  result to the test for Methamphetamine hydrochloride, a regulated drug. xxx [32]

The police officers executed an affidavit of arrest.  Pangan and the two security
[33]

guards signed a certification stating that nothing was destroyed in the condominium unit
and that the search was orderly and peaceful.  The policemen also accomplished an
[34]

inventory of the articles seized during the search. [35]

The appellants were charged of violation of Section 16, Rep. Act No. 6425, as
amended, in an Information filed in the RTC of Parañaque, Metro Manila, the accusatory
portion of which reads:

That on or about the 26th day of October 1996, in the Municipality of Parañaque, Metro Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and both of them mutually helping and aiding one another,
not being lawfully authorized to possess or otherwise use any regulated drug and without the
corresponding license or prescription, did then and there willfully, unlawfully and feloniously have,
in their possession and under their control and custody, the following to wit:

A. One (1) heat-sealed transparent plastic bag containing 1,000.40 grams of white crystalline
substance;

B. One (1) heat-sealed transparent plastic bag containing 998.1 grams of white crystalline
substance;

C. One (1) transparent plastic “Babyflo Nurser” feeding bottle with pink cover containing 18.52
grams of white crystalline substance;

D. One (1) transparent plastic container with white cover containing 3.28 grams of white crystalline
substance

which when examined were found to be positive for Methamphetamine Hydrochloride (Shabu), a
regulated drug.

CONTRARY TO LAW. [36]

Both appellants, assisted by counsel, were duly arraigned on November 29, 1992, and
pleaded not guilty to the charge.

The Case for the Appellants

 Appellant Jogy Lee denied the charge.  She testified that she was a resident of
Kwantong, China, a college graduate who could not speak nor understand English.  She
was once employed in a real estate firm.  One of her co-employees was Huang Zhen Hua.
 She met Henry Lao in China sometime in 1995,  and he brought her to Belgium that
[37] [38]

same year.  Lao also helped her procure a Belguim passport, for he explained that if she
only had a Chinese passport, it would be difficult to secure visas from countries she
wanted to go to and visit; whereas many countries did not require a Belgian passport
holder to secure visas before allowing entry therein.  In the process, he and Lao fell in love
and became lovers.
Upon Lao’s invitation, appellant Lee visited the Philippines as a tourist for the first time
in April 1996.  Lao met her at the airport, and she was, thereafter, brought to a hotel in
Manila where she stayed for less than a month.  She returned to the Philippines a second
[39]

time and was again billeted in a hotel in Manila.  All her expenses were shouldered by
Lao, who was engaged in the garlic business.  As far as she knew, Lao was not engaged
[40]

in any other business.  In June 1996, she invited her friend, appellant Huang Zhen Hua to
[41]

visit the Philippines to enjoy the tourist spots.  They were then in China.
[42]

In the evening of October 1, 1996, appellant Lee returned to the Philippines on a

tourist visa.  She was fetched by Lao, and she was brought to his condominium unit at No.
19, Atlantic Drive, Pacific Grand Villa, Sto. Niño, Parañaque.  She had been residing there
since then.  She and Lao used to go to the shopping malls  and she even saw Chan once
[43]

when he cleaned his Nissan car in Lao’s garage.

On October 22, 1996, appellant Zhen Hua arrived from China at the NAIA and was
met by Lao at the airport.  He tried to check in at the Diamond Hotel but Lee told him that
he could stay in the condominium unit.  Zhen Hua was brought to the Villa where he had
been staying since then.  The appellants had made plans to visit Cebu.
At about 6:00 a.m. on October 26, 1996, appellant Lee was sleeping in the master’s
bedroom at the condominium unit.  She had closed all the windows because she had
turned the air conditioning unit on.  Zhen Hua was sleeping in the other bedroom in the
second floor beside the master’s bedroom.  Lao’s Honda Civic car and Chan’s Nissan car
were in the garage beside the condominium unit.  Momentarily, Lee heard someone
knocking on the bedroom door.  When she opened it, three (3) policemen barged into the
bedroom and at the room where appellant Zhen Hua was sleeping. Anciro, Jr. was not
among the men.  Lee did not hear the policemen knock at the main door before they
entered.  The policemen were accompanied by Chuang, a Cantonese interpreter, who
[44]

told her that the policemen were going to search the house.  Appellant Lee saw a [45]

policeman holding two papers, but no search warrant was shown to her.  She was so [46]

frightened.
The policemen placed two plastic bags on the bed before they searched the master’s
bedroom.  Appellant Lee went to the room of appellant Zhen Hua and when she returned
to the master’s bedroom, she saw shabu on the bed.  The policemen took her ring, watch
[47]

and the P600,000 owned by Lao which had earlier been placed in the cabinet, her papers
and documents, and those of Lao’s as well. She had never seen any shabu in the room
before the incident.  Thereafter, she and appellant Zhen Hua were brought to the PARAC
headquarters where they were detained.  Chuang, the cantonese interpreter, informed her
that shabu had been found in the condominium unit and that the policemen were
demanding P5,000,000 for her release.  She was also told that if she did not pay the
amount, she would be charged with drug trafficking, and that the leader of the group who
arrested her would be promoted.  However, she told Chuang that she had no money. 
Since she could not pay the amount, she was boarded on a PARAC owner-type jeep and
returned to the condominium unit where the policemen took all the household appliances,
such as the television, compact discs, washing machine, including laundry detergent. 
Only the sofa and the bed were not taken.  About ten (10) days later, the appellants
secured the services of counsel.
Antonio Pangan testified that he and the policemen knocked on the door to the
condominium unit but that no one responded.  He shouted, “Sir Henry,” referring to Lao,
but there was no response from inside the condominium.  After about three (3) to five (5)
minutes, a policeman kicked the door open and they entered the house.  They went to the
second floor and saw the appellants sleeping.
Pangan testified that he did not see any shabu that was seized by the policemen.  He
learned that shabu had been found and taken from the condominium unit only when he
saw someone holding up the substance on television during the daily news program TV
Patrol.[48]

Appellant Zhen Hua also denied the charge.  He corroborated the testimony of
appellant Lee that upon her invitation, he arrived in the Philippines on a tourist visa on
October 22, 1996.  He claimed that he did not see Anciro, Jr. in the condominium unit
when policemen arrived and searched the house.  He testified that aside from the PARAC
policemen, he was also investigated by policemen from Taiwan.
After trial, the court rendered judgment on January 10, 1999, convicting both
appellants of the crime charged.  The decretal portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, finding accused Jogy Lee and Huang Zhen Hua
GUILTY beyond reasonable doubt for violation of Sec. 16, Art. III, RA 6425, as amended by RA
7659, and considering the absence of any aggravating circumstances, this Court hereby sentences
both accused to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 each. 
The properties seized in accordance with the search warrants issued relative to this case are hereby
ordered confiscated in favor of the government and the Clerk of Court of this Court is directed to
turn over to the Dangerous Drugs Board, the drugs and paraphernalia subject hereof for proper
disposition.

The Clerk of Court is also directed to prepare the Mittimus for the immediate transfer of both
accused Jogy Lee and Huang Zhen Hua from the Parañaque City Jail to the Bureau of Correccions
(sic) in Muntinlupa City.

SO ORDERED. [49]
 The Present Appeal

On appeal to this Court, appellant Zhen Hua, asserts that:

First. The evidence for the prosecution, as a whole, is so far as self-contradictory, inherently
improbable and palpably false to be accepted as a faithful reflection of the true facts of the case;

Second. Appellant Huang Zhen Hua’s conviction was based merely on the trial court’s conclusion
that he “is not an epitome of first class tourist and that he appeared nonchalant throughout the
proceedings;”

Third. In convicting said appellant, the court below completely disregarded the glaring facts and
admissions of the prosecution’s principal witnesses that no regulated drug was ever found in his
possession;

Fourth. The trial court, likewise, ignored the fact that the appellant’s arrest was illegal and in
violation of his constitutional and basic rights against arrest without probable cause as determined
by a Judge and that his arraignment did not constitute a waiver of such right;

Fifth. The trial court failed to consider the fact that the presumption of regularity of performance of
the police officers who took part in the search had been overcome by prosecution's own evidence,
thereby wrongly giving such presumption substance over and above the constitutional presumption
of innocence of the appellant.[50]

For her part, appellant Lee contends that:

1.01    THE ALLEGED TWO KILOS OF SHABU FOUND INSIDE ONE OF THE ROOMS IN THE
TOWNHOUSE RENTED BY HENRY LAU WERE MERELY PLANTED BY PARAC
OPERATIVES;
1.02    THE IMPLEMENTATION OF THE SEARCH WARRANT WAS HIGHLY IRREGULAR,
DUBIOUS AND UNREASONABLE AS THE SEARCH WARRANT DID NOT CONTAIN ANY
PARTICULAR DESCRIPTION OF THE ROOM TO BE SEARCHED, NOR WAS THERE ANY
INTERPRETER TO ASSIST AND GUIDE JOGY LEE, WHO NEITHER KNEW NOR
UNDERSTAND THE ENGLISH LANGUAGE, DURING THE SEARCH AND EVEN DURING
THE TRIAL;
2.        THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED JOGY LEE UPON THE
GROUND THAT HER GUILT WAS NOT ESTABLISHED BY PROOF BEYOND REASONABLE
DOUBT.[51]

For its part, the Office of the Solicitor General (OSG) posits that appellant Zhen Hua
should be acquitted on the ground of reasonable doubt, but that the conviction of appellant
Lee should be affirmed.

The Court’s Ruling

 We shall delve into and resolve the assigned errors of the appellants Huang Zhen Hua
and Jogy Lee sequentially.
On Appellant Zhen Hua
The OSG contends that the prosecution failed to muster the requisite quantum of
evidence to prove appellant Zhen Hua’s guilt beyond reasonable doubt for the crime
charged, thus:

Huang Zhen Hua denies having anything to do with the bags of “shabu” found in the townhouse
unit of Henry Lau.  He claims that he arrived in the Philippines as a tourist on October 22, 1996,
upon the invitation of Jogy Lee.  Allegedly, at the time of his arrest, he had been in the Philippines
for barely four days. He claims that he was just temporarily billeted as a guest at the townhouse
where Jogy Lee was staying. And that he had no control whatsoever over said townhouse. He puts
emphasis on the fact that the search of his room turned out to be “negative” and that the raiding
team failed to seize or confiscate any prohibited or regulated drug in his person or possession. He,
therefore, prays for his acquittal.

The People submits that Huang Zhen Hua is entitled to acquittal. The prosecution’s evidence fails
to meet the quantum of evidence required to overcome the constitutional presumption of innocence;
thus, regardless of the supposed weakness of his defense, and his innocence may be doubted, he is
nonetheless entitled to an acquittal (Natividad v. Court of Appeals, 98 SCRA 335 (1980), cited
in People v. Fronda, G.R. No. 130602, March 15, 2000).  The constitutional presumption of
innocence guaranteed to every individual is of primary importance, and the conviction of the
accused must  rest not on the weakness of the defense but on the strength of the evidence for the
prosecution.

In the instant case, as pointed out by appellant Huang Zhen Hua, the trial court erred when it did
not give much weight to the admission made by the prosecution witnesses that no regulated drug
was found in his person. No regulated drug was also found inside his room or in his other
belongings such as suitcases, etc.   Thus, he had no actual or constructive possession of the
confiscated “shabu.”

Moreover, it is not disputed that Huang Zhen Hua had only been in the country for barely four (4)
days at the time when he was arrested.  The prosecution was unable to show that in these four (4)
days Huang Zhen Hua committed acts which showed that he was in cahoots with the drug syndicate
Henry Lau and Peter Chan. It was not even shown that he was together with Henry Lau and Peter
Chan on any occasion.   As for Huang Zhen Hua, therefore, there is no direct evidence of any
culpability. Nor is there any circumstantial evidence from which any culpability may be inferred. [52]

We agree with the OSG.  In a case of recent vintage, this Court, in People vs. Tira,
 ruminated and expostulated on the juridical concept of “possession” under Section 16,
[53]

Article III of Rep. Act No. 6425, as amended, and the evidence necessary to prove the
said crime, thus:

The essential elements of the crime of possession of regulated drugs are the following: (a) the
accused is found in possession of a regulated drug; (b) the person is not authorized by law or by
duly constituted authorities; and, (c) the accused has knowledge that the said drug is a regulated
drug. This crime is mala prohibita, and, as such, criminal intent is not an essential element. 
However, the prosecution must prove that the accused had the intent to possess (animus posidende)
the drugs.  Possession, under the law, includes not only actual possession, but also constructive
possession. Actual possession exists when the drug is in the immediate physical possession or
control of the accused.  On the other hand, constructive possession exits when the drug is under the
dominion and control of the accused or when he has the right to exercise dominion and control over
the place where it is found.  Exclusive possession or control is not necessary.  The accused cannot
avoid conviction if his right to exercise control and dominion over the place where the contraband
is located, is shared with another.

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-
exclusive possession would not exonerate the accused.  Such fact of possession may be proved by
direct or circumstantial evidence and any reasonable inference drawn therefrom. However, the
prosecution must prove that the accused had knowledge of the existence and presence of the drug in
the place under his control and dominion and the character of the drug.  Since knowledge by the
accused of the existence and character of the drugs in the place where he exercises dominion and
control is an internal act, the same may be presumed from the fact that the dangerous drug is in the
house or place over which the accused has control or dominion, or within such premises in the
absence of any satisfactory explanation.[54]

In this case, the prosecution failed to prove that the appellant, at any time, had actual
or constructive possession of the regulated drug found in the master’s bedroom where
appellant Lee was sleeping; or that the appellant had accessed the said room at any given
time; or that he had knowledge of the existence of shabu in appellant Lee’s bedroom. 
Appellant Zhen Hua had arrived in the Philippines upon the invitation of appellant Lee only
on October 22, 1996 or barely four (4) days before the arrival of the policemen and the
search conducted in the condominium unit leased by Henry Lao.  He was a mere visitor of
appellant Lee.  There is no evidence that appellant Zhen Hua was aware of the alleged
illegal drug activities and/or transactions of Henry Lao, Peter Chan and appellant Lee. 
The policemen did not find any regulated drug in the room where appellant Zhen Hua was
sleeping when they made their search.
The evidence of the prosecution against appellant Zhen Hua falls short of the requisite
quantum of evidence to prove conspiracy between him, appellant Lee and Chan or Lao.
There is conspiracy when two or more persons agree to commit a crime and decide to
commit it.  Conspiracy cannot be presumed.  Conspiracy must be proved beyond
[55] [56]

reasonable doubt like the crime subject of the conspiracy.  Conspiracy may be proved by
[57]

direct evidence or by proof of the overt acts of the accused, before, during and after the
commission of the crime charged indicative of a common design. [58]

The bare fact that on two or three occasions after the arrival of appellant Zhen Hua
from China, and before the search conducted in Lao’s condominium unit, appellant Zhen
Hua had been seen with Lao, Chan and appellant Lee.  Having dinner or lunch at a
restaurant does not constitute sufficient proof that he had conspired with them or with any
of them to possess the subject-regulated drug.  Mere association with the principals by
direct participation or mere knowledge of conspiracy, without more, does not suffice.   [59]

Anciro, Jr. even admitted that during his surveillance, he could have mistaken appellant
Zhen Hua for another group of Chinese persons who were also being watched.  Appellant
[60]

Zhen Hua should, thus, be acquitted.

On Appellant Lee
Appellant Lee avers that certain irregularities were attendant in the issuance and
implementation of Search Warrant No. 96-802, as follows:  (a) the policemen who
implemented the search warrant failed in their duty to show to her the said warrant, inform
her of their authority and explain their presence in the condominium unit; (b) the
policemen gained entry into the condominium unit by force while she was sleeping; and
(c) articles and personal effects owned by her and Lao were taken and confiscated by the
policemen, although not specified in the search warrant.
The appellant concludes that the articles procured by the policemen on the occasion of
the search of the condominium unit are inadmissible in evidence.
Appellant Lee, likewise, contends that she was a victim of a frame-up because the
policemen planted the regulated drug on her bed even before they searched the
bedroom.  She went to the room of appellant Zhen Hua to find out if he was already
awake, and when she returned to the bedroom, she noticed shabu on her bed.  She avers
that the sole testimony of Anciro, Jr., that he found the regulated drug in the master’s
bedroom, is incredible because he was not with the policemen who barged into the
bedroom.  She notes that even Pangan, the caretaker of the Villa, testified that he did not
see any illegal drug confiscated by the policemen.
According to appellant Lee, the trial court erred in convicting her of the crime charged,
considering that Lao and Chan were the suspects identified in the search warrants, not
her.  She avers that she had no knowledge of the alleged illegal drug transactions of her
lover Lao.  She contends that there was no probable cause for her arrest as her mere
presence in the condominium unit does not render her liable for the shabu found in the
master’s bedroom of the condominium unit leased by Lao.  She further avers that the
testimonies of the witnesses for the prosecution are inconsistent; hence, barren of
probative weight.  The appellant also asserts that she was deprived of her right to due
process when the trial court conducted a trial without a Chinese interpreter to assist her.
The OSG, for its part, avers that the police officers are presumed to have performed
their duties. Based on the testimony of Anciro, Jr., appellant Lee was shown the search
warrant, through the window, and the policemen identified themselves through their
uniforms.  The security guards of the condominium also explained the search warrant to
the appellant.  Although she was, at first, reluctant to open the door, appellant Lee later
voluntarily opened the door and allowed them entry into the unit.  There was no evidence
of forcible entry into the unit and no breakage of any door.  The OSG further avers that the
appellant had been in the country for quite sometime already and could not have gotten
around without understanding English.  In fact, the OSG argues that when Anciro, Jr. told
the appellant to get some of her clothes since she would be brought to the police
headquarters in Quezon City, she did as she was told and took her clothes from the
cabinet where the shabu were found by the policemen.
The OSG further points out that Pangan, the chief of security of the subdivision who
was a witness for appellant Lee, even testified that the search was orderly.  The OSG
contends that there was probable cause for the appellant’s arrest because an informant
had tipped off the arresting officers that the appellant was a member of a syndicate
dealing with illegal drugs, and that she handled the accounts of Lao and Chan.  The
appellant was not a victim of frame-up because she was present when the policemen
searched the master’s bedroom where she was sleeping and where she kept her clothes,
and witnessed the discovery of the regulated drugs and paraphernalia.
We agree with the contention of the appellant that the constitutional proscription
against unreasonable search and seizure applies to Filipino citizens, as well as to aliens
temporarily residing in the country.  The rule against unreasonable search and seizure
forbids every search that is unreasonable; it protects all those suspected or known to be
offenders, as well as the innocent.  The guarantee is as important and imperative as the
guarantee of the other fundamental rights of the citizens.   All owes the duty for its
[61]

effective enforcement lest there shall be an impairment of the right for the purpose for
which it was adopted. [62]

Section 7, Rule 126 of the Revised Rules of Criminal Procedure provides:

SEC. 7. Right to break door or window to effect search. – The officer, if refused admittance to the
place of directed search after giving notice  of his purpose and authority, may break open any outer
or inner door or window of a house or any part of a house or anything therein to execute the
warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein.

The police officers were obliged to give the appellant notice, show to her their
authority, and demand that they be allowed entry.  They may only break open any outer or
inner door or window of a house to execute the search warrant if, after such notice and
demand, such officers are refused entry to the place of directed search.  This is known as
the “knock and announce” principle which is embodied in Anglo-American Law.  The
method of entry of an officer into a dwelling and the presence or absence of such notice
are as important considerations in assessing whether subsequent entry to search and/or
arrest is constitutionally reasonable.  In Gouled v. The United States,  it was held that a
[63] [64]

lawful entry is the indispensable predicate of a reasonable search.  A search would violate
the Constitution if the entry were illegal, whether accomplished by force, by illegal threat or
mere show of force.
The principle may be traced to a statute in England way back in 1275 providing that “if
a person takes the beasts of another and causes them to be driven into a castle or
fortress, if the sheriff makes a solemn demand for the deliverance of the beasts, and if the
person did not cause the beasts to be delivered incontinent, the king shall cause the said
castle or fortress to be beaten down without recovery.”  Common law courts appended an
important qualification:
But before he breaks it, he ought to signify the cause of his coming, and to make request to open
doors …, for the law without a default in the owner abhors the destruction or breaking of any house
(which is for the habitation and safety of man) by which great damage and inconvenience might
ensue to the party, when no default is in him; for perhaps he did not know of the process, of which,
if he had noticed, it is to be presumed that he would obey it… [65]

Blackstone simply stated the principle that the sheriff may justify breaking open doors
if the possession be not quietly delivered.  The principle was woven quickly into the fabric
[66]

of early American law and in the Fourth Amendment in the United States Federal
Constitution.  It is an element of the reasonableness inquiry under the Fourth Amendment
as held in Wilson v. Arkansas. [67]

Generally, officers implementing a search warrant must announce their presence,

identify themselves to the accused and to the persons who rightfully have possession of
the premises to be searched, and show to them the search warrant to be implemented by
them and explain to them said warrant in a language or dialect known to and understood
by them.  The requirement is not a mere procedural formality but is of the essence of the
substantial provision which safeguards individual liberty.  No precise form of words is
[68]

required.  It is sufficient that the accused has notice of the officers, their authority and the
purpose of the search and the object to be seized.  It must be emphasized that the notice
requirement is designed not only for the protection of the liberty of the person to be
searched or of his property but also the safety and well-being of the officers serving and
implementing the search warrant.  Unless the person to whom the warrant is addressed
and whose property is to be searched is notified of the search warrant and apprised of the
authority of the person serving the warrant, he may consider the unannounced intrusion
into the premises as an unlawful aggression on his property which he will be justified in
resisting, and in the process, may cause injury even to the life of the officer implementing
the warrant for which he would not be criminally liable.  Also, there is a very real possibility
that the police serving and implementing the search warrant may be misinformed as to the
name or address of the suspect, or to other material affirmations.  Innocent citizens should
not suffer the shock, fright, shame or embarrassment attendant upon an unannounced
intrusion.  Indeed, a lawful entry is the indispensable predicate of a reasonable search.  A
[69]

search would violate the constitutional guarantee against unreasonable search and
seizure if the entry were illegal, whether accomplished by force, or by threat or show of
force or obtained by stealth, or coercion. [70]

Unannounced intrusion into the premises is permissible when (a) a party whose
premises or is entitled to the possession thereof refuses, upon demand, to open it; (b)
when such person in the premises already knew of the identity of the officers and of their
authority and persons; (c) when the officers are justified in the honest belief that there is
an imminent peril to life or limb; and (d) when those in the premises, aware of the
presence of someone outside (because, for example, there has been a knock at the door),
are then engaged in activity which justifies the officers to believe that an escape or the
destruction of evidence is being attempted.  Suspects have no constitutional right to
destroy evidence or dispose of evidence.  However, the exceptions above are not
[71]

exclusive or conclusive.  At times, without the benefit of hindsight and ordinarily on the
spur of the moment, the officer must decide whether or not to make an unannounced
intrusion into the premises.  Although a search and seizure of a dwelling might be
constitutionally defective, if the police officers’ entry was without prior announcement, law
enforcement interest may also establish the reasonableness of an unannounced entry.
 Indeed, there is no formula for the determination of reasonableness.  Each case is to be
[72]

decided on its own facts and circumstances.  In determining the lawfulness of an
[73]

unallowed entry and the existence of probable cause, the courts are concerned only with
what the officers had reason to believe and the time of the entry.   InRichards v. [74]

Wisconsin,  it was held that:

[75]

[1] In order to justify a “no-knock” entry, the police must have a reasonable suspicion that
knocking and announcing their presence, under the particular circumstances, would be dangerous
or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing
the destruction of evidence.  This standard—as opposed to a probable-cause requirement—strikes
the appropriate balance between the legitimate law enforcement concerns at issue in the execution
of search warrants and the individual privacy interest affected by no-knock entries. [76]

As articulated in Benefield v. State of Florida,  what constitutes breaking includes the

[77]

lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or
pushing open a closed door of entrance to the house, even a closed screen door.
 However, entry obtained through the use of deception, accomplished without force is not
[78]

a “breaking” requiring officers to first announce their authority and purpose because the
reasons behind the rule are satisfied – there was no real likelihood of violence, no
unwarranted intrusion or privacy and no damage to the residence of the accused. [79]

As to how long an officer implementing a search warrant must wait before breaking
open any door cannot be distilled into a constitutional stopwatch.  Each case has to be
decided on a case-to-case basis requiring an examination of all the circumstances.  The [80]

proper trigger point in determining, under the “knock and announce” rule, whether the
police waited long enough before entering the residence to execute a warrant, is when
those inside should have been alerted that the police wanted entry to execute a warrant. [81]

In this case, we rule that the policemen complied with Section 7, Rule 126 of the
Revised Rules of Criminal Procedure before entering the condominium unit.  Appellant
Lee admitted, when she testified, that the police officers were accompanied by Chuang, a
Cantonese interpreter, who informed her that his companions were police officers and had
a search warrant for the premises, and also explained to her that the officers were going
to search the condominium unit.  The appellant was sufficiently aware of the authority of
[82]

the policemen, who wore PARAC uniforms, to conduct the search and their purpose. 
Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as she
was to be brought to the police headquarters.  Without such request being interpreted to
the appellant, the latter did as she was directed and took some clothes from the cabinet
atop the headboard. [83]

The evidence on record shows that the police officers knocked on the outer door
before entering the condominium unit, and after a while, the appellant opened the door
and allowed the policemen and Pangan to enter. Anciro, Jr. testified, thus:
 Q    Do you still recall Mr. Witness the identities of the security guards who helped you or assisted you
in implementing said search warrants at Grand Villa Subdivision?
A     The OIC of the Home Owners’ Association, Antonio Pangan, and the OIC of the Security Agency
and two (2) other security guards.
Q    Do you recall the names of those persons you mentioned Mr. Witness?
A     I can hardly recall their names.
Q    After having been assisted or coordinated with said security officers and the OIC of the Home
Owners’ Association, what did you do next?
A     We told them that if we could ask them if they have a duplicate key and also knock and introduce
ourselves, knock on the said condominium.
Q    Did they do that, the request?
A     Yes, Sir.
Q    Meaning to say, you arrived at #19 Atlantic Drive, Pacific Grand Villa?
A     Yes, Sir.
Q    While you were already at the door of that targeted house to implement said search warrants,
what happened next, if any? What did you do after that?
A     We knocked on the door and tried to find out if there was somebody there because the Home
Owners’ Association doesn’t have any key for the door.  We asked them to knock also because
they are the ones who have access with the tenants.
Q    And after knocking, what happened next?
A     There were around 5 minutes, no one was trying to open the door.  By that time, we thought they
were still asleep.
Q    And then after that what did you do, if any?
A     We asked Mr. Pangan to knock and introduce himself and another security guard to try to knock
on the kitchen which is on the back door.
Q    And then after that?
A     And then after that, it was a female person who showed up to (sic) the window of the kitchen and
asked who we are in a sign language.
Q    And this female person who showed up to (sic) the window … I withdraw.  Were you able to have
a good look on that female person who showed herself thru the window?
A     Yes, Sir.
Q    And who is this person Mr. Witness?
A     She was identified as Jogy Lee, Sir.[84]

The appellant failed to prove that the policemen broke open the door to gain entry into
the condominium unit.  She could have asked the court for an ocular inspection to show
the door which was allegedly broken into by the policemen, or at least adduce in evidence
pictures showing the said breakage.  The appellant failed to do so.  The testimony of the
appellant is even belied by Pangan, who was a witness for the appellant, who certified,
along with three other security guards, that nothing was destroyed and that the search
was conducted in a peaceful and orderly manner. [85]
 We are not impervious of the testimony of Pangan that the policemen kicked the outer
door to gain entry into the condominium unit, which testimony is seemingly in derogation
of his certification.  However, Pangan admitted that the policemen did so only after
knocking on the door for three (3) to five (5) minutes and after he had called Lao in a loud
voice and received no response from the appellants:
Q    Did you come to know the persons wherein your presence was being required according to your
security guards?
A     According to my security guards, they introduced themselves as police operatives.
Q    Did you comply with the invitation of these police authorities?
A     Yes, they called me and according to them, they will search Unit 19, that is what they told me.
Q    Can you please tell us what time did the police operatives conduct the search?
A     I cannot recall anymore because the incident happened in 1996.  I don’t know what time was
that.
Q    When they conducted the search, were you there?
A     I was there because that unit cannot be opened if the caretaker is not present.
Q    Are you trying to say that you were the one who opened the door of that unit occupied by Henry
Kau Chung?
A     They kicked the door and when nobody opened the door, they pushed the door and the door was
opened.
Q    They forcibly opened the door when nobody opened it?
A     Kaya naman po ginawa ‘yon dahil nandoon naman po ang caretaker, wala naman pong
masamang mangyayari dahil nandoon naman po ang namamahala.
Q    From the time you knocked at the door of this unit up to the time that the police operatives forcibly
break open the door, how many minutes had elapsed?
A     Matagal din po silang kumakatok sa pintuan.  I said, “Mr. Henry, pakibuksan n’yo ang pinto,
would you mind to open the door, kasi merong mga police officers na gustong ma-search itong
unit mo.  Then, when nobody was answering, they forcibly opened the door.
Q    Was there any other occupant other than Henry Kau Chung in that unit at that time?
A     At the second floor, they saw this Jogy Lee and her male companion whom I do not know.
Q    But during the time that you were trying to seek entry to the door, there was no one who
responded, is that correct?
A     Pardon, Sir?
Q    At the time that you were trying to knock at the door, there was no one who responded to your
knocking at the door?
A     Nobody was answering, Sir.
Q    And that compelled the police operatives to open the door forcibly?
A     Yes, Sir.[86]
…
COURT:
 From the first time you knocked at the door, how long a time lapsed before the police officer
broke open the door?
A     Matagal din po.
Q    For how long?
A     Maybe for about three to five minutes.
Q    When nobody was answering, they forced open the door?
A     Yes, Your Honor.
COURT:
       Continue.[87]

The appellant failed to prove, with clear and convincing evidence, her contention that
Anciro, Jr. placed the shabu on her bed before he continued his search in the bedroom,
and that she was a victim of frame-up by the policemen.  She relied on her testimony and
those of Pangan and Ferias that they did not see Anciro, Jr. discover and take custody of
the shabu in the cabinet.
The appellant’s defense of frame-up is nothing new.  It is a common and standard line
of defense in most prosecutions for violation of the Dangerous Drugs Law.  While such
defense cannot and should not always be considered as contrived, nonetheless, it is
generally rejected for it can easily be concocted but is difficult to prove.  Police officers
are, after all, presumed to have acted regularly in the performance of their official
functions, in the absence of clear and convincing proof to the contrary, or that they are
motivated by ill-will. [88]

It is true, as testified by Pangan and Ferias that, they did not see Anciro, Jr. discover
and take custody of the shabu subject of this case.  However, as explained by Pangan, he
remained in the ground floor of the condominium unit while Anciro, Jr., Castillo and
Margallo searched the bedroom of appellant Lee and her lover Lao, and Ferias proceeded
to the room occupied by appellant Zhen Hua where he conducted his search.  Thus,
Pangan testified:
Q    When the master’s bedroom was searched where Jogy Lee was then, according to you, sleeping,
did you accompany the PARAC members?
A     No, Sir, because I was talking to a member of the PARAC downstairs.
Q    What about the members of the security force?
A     They were outside, Sir.
Q    During the search made on the master’s bedroom?
A     Yes, Sir.
Q    How about when the search was made in the room occupied by Huang Zhen Hua, were you
present then?
A     No, Sir, I was still downstairs.
Q    How about the other guards?
A     They were also outside.[89]
 For his part, Ferias declared:
Q    In other words, you did not go inside the biggest room?
A     No, Sir.
Q    You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?
A     Yes, Sir.
Q    What happened next?
A     We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.
Q    What was the reaction of Huang Zhenhua?
A     He was surprised.[90]
…
Q    In other words, you did not go inside the biggest room?
A     No, Sir.
Q    You proceeded to another room where co-accused Huang Zhen Hua was then sleeping?
A     Yes, Sir.
Q    What happened next?
A     We woke up Huang Zhen Hua and we introduced ourselves to him as police officers.
Q    What was the reaction of Huang Zhen Hua?
A     He was surprised.[91]

Pangan testified that before the police officers conducted their search in the second
floor of the condominium unit, he did not see them bring in anything:
Q    But you are very sure that before the police officers searched the unit, you did not see them
bringing anything with them, they were all empty-handed?
A     I did not see, Sir.[92]

No less than Pangan himself, a witness for the appellants, and three of the security
guards of the subdivision, who accompanied the policemen in implementing the search
warrants, certified that, what was found inside the condominium unit and confiscated by
the policemen were two plastic bags which contained white crystalline powder substances
suspected to be shabu. [93]

The appellant admitted that she saw shabu in her bedroom while the policemen were
there.  She claimed that the policemen placed the plastic bag on the bed before they
started the search and that she noticed the shabu only after he returned from the room of
appellant Zhen Hua to see if he was already awake is hard to believe.
First.  We find it incredible that the policemen placed the shabu on the appellant’s bed,
in her full view, for which the latter could be prosecuted for planting evidence and, if
convicted, sentenced to death under Section 19 of Rep. Act 7659:

SECTION 19.  Section 24 of Republic Act No. 6425, as amended, known as the Dangerous Act of
1972, is hereby amended to read as follows:
Sec. 24. Penalties for Government Officials and Employees and Officers and Members of Police
Agencies and the Armed Forces, ‘Planting’ of Evidence.— The maximum penalties provided for
[in] Section 3, 4(1), 5(1), 6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 15(1), 16 and
19 of Article III shall be imposed, if those found guilty of any of the said offenses are  government
officials, employees or officers, including members of police agencies and the armed forces.

Any such above government official, employee or officer who is found guilty of “planting” any
dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15
and 16 of Article III of this Act in the person or in the immediate vicinity of another as evidence to
implicate the latter, shall suffer the same penalty as therein provided.

Second.  The appellant failed to inform her counsel of the alleged planting of evidence
by the policemen; if she had done so, for sure, the said counsel would have prepared her
affidavit and filed the appropriate motion in court for the suppression of the things/articles
seized by the policemen.
Third.  The appellant failed to charge the policemen with planting of evidence before or
after she was charged of violation of Rep. Act No. 6425, as amended.
Fourth.  The appellant cannot even identify and describe the policeman or policemen
who allegedly planted the evidence.
The fact is that, as gleaned from the affidavit of arrest signed by Anciro, Jr. and Ferias,
the articles and substances found and confiscated from the condominium unit of Lao and
appellant Lee at Atlantic Drive and at the Cityland condominium unit of Lao and Chan
were itemized as follows:

a. TWO (2) Big Transparent Plastic Bags containing about one (1) kilo each of white crystalline
granules later tested to be Methamphetamine Hydrochloride or Shabu, a regulated drug;

b. ONE (1) Transparent Plastic Baby Feeding Bottle containing undetermined quantity of
suspected Shabu;

c. ONE (1) Small Plastic Canister also containing undetermined amount of suspected Shabu …

d. Assorted Pieces of Shabu Paraphernalia consisting of Improvised Tooters used for

sniffing shabu, Improvised Burners used for burning Shabu, aluminum foils, etc.;

a.       TWO (2) Kettles/Pots containing more or less 1 ½ kilos of Raw Shabu or Methamphetamine
Hydrochloride;

b.       Two (2) Big Transparent Plastic Bags containing more or less Two (2) Kilos of Shabu;

c.       Three (3) Plastic Basins, small, medium, large, used for containers of finished/cooked Shabu;

c.       Several pieces of Plastic Strainers used for draining out liquids from finished Shabu;
e.       One (1) Plastic Container with liquid chemical of undetermined element;

f.        Several pieces of Spoons and ladles with traces of raw Shabu used in stirring mixtures

g.       One (1) Electric Cooking Stove w/one coil burner;

h.       One (1) Unit Card Making Machine;

i.        One (1) Unit Card Stamping Machine;

j.        Several pieces of Credit Cards and Telephone Cards; [94]

Anciro, Jr. placed his initials on the plastic bags containing white crystalline powder
which were found and confiscated at Atlantic Drive and, in the company of Ferias,
delivered the same to the PNP Crime Laboratory for examination, per the request of
Police Superintendent Janice P. de Guzman, the chief of the PARAC.
We agree with the appellant that she was not one of the accused named in the search
warrants.  However, such fact did not proscribe the policemen from arresting her and
charging her of violation of Rep. Act No. 6425, as amended.  There was, in fine, probable
cause for her warrantless arrest independent of that found by Judge William Bayhon when
he issued the search warrants against Lao and Chan for search of the condominium units
at Atlantic Drive and Cityland.
Probable cause exists for the warrantless detention and arrest of one at the premises
being searched when the facts and circumstances within their knowledge and of which
they had reliable and trustworthy information are sufficient to themselves warrant a
reasonable belief of a cautious person that an offense has been or is being committed.  It [95]

has been held that:

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers
entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. 
Upon their entry and announcement of their identity, the officers were met not only by George Ker
but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to
the doorway from which she emerged and, without entering, observed the brick-shaped package of
marijuana in plain view.  Even assuming that her presence in a small room with the contraband in a
prominent position on the kitchen sink would not alone establish a reasonable ground for the
officers’ belief that she was in joint possession with her husband, that fact was accompanied by the
officers’ information that Ker had been using his apartment as a base of operations for his narcotics
activities.  Therefore, we cannot say that at the time of her arrest there were no sufficient grounds
for a reasonable belief that Diane Ker, as well as her husband, were committing the offense of
possession of marijuana in the presence of the officers.[96]

In Draper v. United States,  it was held that informations from a reliable informant,
[97]

corroborated by the police officer’s observations as to the accuracy of the description of

the accused, and of his presence at a particular place, is sufficient to establish probable
cause.  In this case, the police officers received reliable information and verified, after
surveillance, that  appellant Lee and Lao were living together as husband and wife in the
condominium unit and that appellant Lee handled the accounting of the payments and
proceeds of the illegal drug trafficking activities of Lao.  Indeed, the policemen found that
the appellant occupied the bedroom and slept in the same bed used by Lao.  The
appellant took her clothes from the same cabinet where the subject shabu and
paraphernalia were found by Anciro, Jr.  The appellant had been living in the same
condominium unit with Lao since October 1, 1996 until her arrest on October 25, 1996. 
Along with Lao, the appellant thus had joint control and possession of the bedroom, as
well as of the articles, paraphernalia, and the shabu found therein.  Such facts and
circumstances are sufficient on which to base a reasonable belief that the appellant had
joint possession of the regulated drugs found in the bedroom along with Lao, her live-in
partner, in line with our ruling in People v. Tira.  For the purpose of prosecution for
[98]

violation of the Dangerous Drugs Law, possession can be constructive and need not be
exclusive, but may be joint. [99]

Admittedly, Anciro, Jr. seized and took custody of certain articles belonging to the
appellant and Lao which were not described in the search warrants.  However, the seizure
of articles not listed in a search warrant does not render the seizure of the articles
described and listed therein illegal; nor does it render inadmissible in evidence such
articles which were described in the warrant and seized pursuant thereto.  Moreover, it
bears stressing that Anciro, Jr. saw the unlisted articles when he and the other policemen
implemented the search warrants.  Such articles were in plain view of Anciro, Jr. as he
implemented the search warrants and was authorized to seize the said articles because of
their close connection to the crime charged.  As held in Coolidge, Jr. v. New Hampshire: [100]

An example of the applicability of the ‘plain view’ doctrine is the situation in which the police have
a warrant to search a given area for specified objects, and in the course of the search come across
some other article of incriminating character. …

Where the initial intrusion that brings the police within plain view of such an article is supported,
not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is
also legitimate. Thus, the police may inadvertently come across evidence while in ‘hot pursuit’ of a
fleeing suspect. … And an object that comes into view during a search incident to arrest that is
appropriately limited in scope under existing law may be seized without a warrant.… Finally, the
‘plain view’ doctrine has been applied where a police officer is not searching for evidence against
the accused, but nonetheless inadvertently comes across an incriminating object. … [101]

It cannot be denied that the cards, passbook, passport and other documents and
papers seen by the policemen have an intimate nexus with the crime charged or, at the
very least, incriminating.  The passport of the appellant would show when and how often
she had been in and out of the country.  Her credit cards and bank book would indicate
how much money she had amassed while in the country and how she acquired or earned
the same.  The pictures and those of the other persons shown therein are relevant to
show her relationship to Lao and Chan. [102]
 Contrary to the claim of the appellant, it is not true that the trial court failed to provide
an interpreter when she testified.  The records show that a Cantonese interpreter attended
the trial and interpreted her testimony.  The Rules of Court does not require the trial court
to provide the appellant with an interpreter throughout the trial.  An interpreter is required
only if the witness on the stand testifies in a language other than in English or is a deaf-
mute.  The appellant may procure the services of an interpreter at her own expense.
Contrary to the claim of appellant Lee, the prosecution adduced proof beyond
reasonable doubt of her guilt of the crime charged.  She and Lao, her lover, had joint
possession of the shabuwhich the policemen found and confiscated from her bedroom. 
IN LIGHT OF ALL THE FOREGOING, the appeal of appellant Huang Zhen Hua is
GRANTED.  The Decision of the Regional Trial Court of Parañaque City, convicting him of
the crime charged, is REVERSED AND SET ASIDE.  The said appellant is ACQUITTED
of said charge.  The Director of the Bureau of Corrections is hereby directed to release the
said appellant from detention unless he is detained for another cause or charge, and to
submit to the Court, within five (5) days from notice hereof, a report of his compliance with
the directive of the Court.
The appeal of appellant Jogy Lee is DENIED.  The Decision dated January 10, 1999,
of the Regional Trial Court of Parañaque City, convicting her of violation of Section 16,
Rep. Act No. 6425 is AFFIRMED.  No costs.
U.S. Supreme Court
In re Yamashita, 327 U.S. 1 (1946)

In re Yamashita

No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*

327 U.S. 1

Syllabus

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group
of the Imperial Japanese Army in the Philippine Islands. On that day, he surrendered to the United
States Army and became a prisoner of war. Respondent was the Commanding General of the United
States Army Forces, Western Pacific, whose command embraced the Philippine Islands. Respondent
appointed a military commission to try the petitioner on a charge of violation of the law of war. The
gist of the charge was that petitioner had failed in his duty as an army commander to control the
operations of his troops, "permitting them to commit" specified atrocities against the civilian
population and prisoners of war. Petitioner was found guilty, and sentenced to death.

Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327 U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy combatants for
offenses against the law of war, and principles governing the exercise of jurisdiction by such
commissions, considered. Citing Ex parte Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any commander
competent to appoint a general court-martial, as was respondent by order of the President. P. 327 U.
S. 10.

(c) The order creating the military commission was in conformity with the Act of Congress (10 U.S.C.
§§ 1471-1593) sanctioning

Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war committed by enemy
combatants. P. 327 U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had ceased.
P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may lawfully be tried
by a military commission after hostilities have ceased -- at least until peace has been officially
recognized by treaty or proclamation by the political branch of the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political branch of the
Government, by military command, by international law and usage, and by the terms of the
surrender of the Japanese government. P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war. P.327 U. S. 13.

(a) The law of war imposes on an army commander a duty to take such appropriate measures as are
within his power to control the troops under his command for the prevention of acts which are
violations of the law of war and which are likely to attend the occupation of hostile territory by an
uncontrolled soldiery, and he may be charged with personal responsibility for his failure to take such
measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of war, and
whether such measures as he may have taken were appropriate and sufficient to discharge the duty
imposed upon him, were questions within the peculiar competence of the military officers composing
the commission, and were for it to decide. P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be stated with
the precision of a common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a
violation of the law of war, and the military commission had authority to try and to decide the issue
which it raised. P. 327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion evidence, the
military commission did not violate any Act of Congress, treaty, or military command defining the
commission's authority. Pp. 327 U. S. 18, 327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an enemy
combatant by a military commission

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be followed in
such trial. Pp. 327 U. S. 19-20.
(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and according to
the same procedure as in the case of persons belonging to the armed forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the petitioner.
Article 63 refers to sentence "pronounced against a prisoner of war" for an offense committed while a
prisoner of war, and not for a violation of the law of war committed while a combatant. P. 327 U. S.
20.

(c) The Court expresses no opinion on the question of the wisdom of considering such evidence as
was received in this proceeding, nor on the question whether the action of a military tribunal in
admitting evidence which Congress or controlling military command has directed to be excluded may
be drawn in question by petition for habeas corpus or prohibition. P. 327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or innocence of the
petitioner. P. 327 U. S. 8.

6. By sanctioning trials of enemy aliens by military commission for offenses against the law of war,
Congress recognized the right of the accused to make a defense, and did not foreclose their right to
contend that the Constitution or laws of the United States withhold authority to proceed with the
trial. P. 327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was convicted. P. 327 U. S.
17.

8. The military commission's rulings on evidence and on the mode of conducting the proceedings
against the petitioner are not reviewable by the courts, but only by the reviewing military authorities.
From this viewpoint, it is unnecessary to consider what, in other situations, the Fifth Amendment
might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall
advise the representative of the protecting Power thereof as soon as possible, and always before the
date set for the opening of the trial,"

applies only to persons who are subjected to judicial proceedings for offenses committed while
prisoners of war. P. 327 U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject to the
prescribed review by the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.

Page 328 U. S. 4
No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and prohibition in this
Court challenging the jurisdiction and legal authority of a military commission which convicted
applicant of a violation of the law of war and sentenced him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the Commonwealth of the
Philippines, 42 Off.Gaz. 664, denying an application for writs of habeas corpus and prohibition
likewise challenging the jurisdiction and legal authority of the military commission which tried and
convicted petitioner. Denied.

Yamashita vs. Styer

G.R. L-129 December 19, 1945
Ponente: Moran, C.J.

Facts:
1. Yamashita was the Commanding General of the Japanese army in the Philippines during World War
2. He was charged before the American military commission for war crimes.

2. He filed a petition for habeas corpus and prohibition against Gen. Styler to reinstate his status as
prisoner of war from being accused as a war criminal. Petitioner also questioned the jurisdiction of
the military tribunal.

Issue: Whether or not the military tribunal has jurisdiction

Held:

YES.
1. The military commission was lawfully created in conformity with an act of Congress sanctioning the
creation of such tribunals.

2. The laws of war imposes upon a commander the duty to take any appropriate measures within his
powers to control the troops under his command to prevent acts which constitute violation of the
laws of war. Hence, petitioner could be legitimately charged with personal responsibility arising from
his failure to take such measure. In this regard the SC invoked Art. 1 of the Hague Convention No. IV
of 1907, as well as Art. 19 of Hague Convention No. X, Art. 26 of 1929 Geneva Convention among
others.

3. Habeas corpus is untenable since the petitioner merely sought for restoration to his former status
as prisoner of war and not a discharge from confinement. This is a matter of military measure and
not within the jurisdiction of the courts.

4. The petition for prohibition against the respondent will also not life since the military commission is
not made a party respondent in the case. As such, no order may be issued requiring it to refrain from
trying the petitioner.
Kuroda was the highest ranking Japanese officer stationed in the Philippines during the Japanese occupation. He
was then charged before the Military Commission due to the atrocities that were done against non combatant
civilians and prisoners during the war. His trial was in pursuant to EO No. 68 which established the National War
Crimes Office and prescribing rules and regulations governing the trial of accused war criminals. Kuroda is
questioning the legality of the said EO arguing that the same is not provided for in the Constitution. He further
underscores the fact that the Philippines is not a signatory of the Hague Convention on Rules and Regulations
Covering Land Warfare hence we cannot impose against him any criminal charges because it has no laws to base
on, national or international.
ISSUE: Whether or not Kuroda can be charged in Philippine courts?
HELD: EO No. 68 is constitutional hence the Philippine courts can take cognizance of the case at bar. EO No 68 is
in pursuant to the constitutional provision that states “the Philippines renounces war as an instrument of national
policy, and adopts the generally accepted principles of international law as part of the law of the nation .” The Hague
Convention and other similar conventions whose principles are generally accepted are hence considered as part of
the law of the land.

Facts
Shinegori Kuroda, a former Lieutenant-General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines was charged before the Philippine Military Commission for war crimes. As he
was the commanding general during such period of war, he was tried for failure to discharge his duties and permitting the
brutal atrocities and other high crimes committed by his men against noncombatant civilians and prisoners of the
Japanese forces, in violation of of the laws and customs of war.
Kuroda, in his petition, argues that the Military Commission is not a valid court because the law that created it, Executive
Order No. 68, is unconstitutional. He further contends that using as basis the Hague Convention’s Rules and Regulations
covering Land Warfare for the war crime committed cannot stand ground as the Philippines was not a signatory of such
rules in such convention. Furthermore, he alleges that the United States is not a party of interest in the case and that the
two US prosecutors cannot practice law in the Philippines. 

Issue
1.Whether or not Executive Order No. 68 is constitutional
2.Whether or not the US is a party of interest to this case

Ruling
The Supreme Court ruled that Executive Order No. 68, creating the National War Crimes Office and prescribing rules on
the trial of accused war criminals, is constitutional as it is aligned with Sec 3,Article 2 of the Constitution which states that
“The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of
international law as part of the law of the nation.” The generally accepted principles of international law includes those
formed during the Hague Convention, the Geneva Convention and other international jurisprudence established by United
Nations. These include the principle that all persons, military or civilian, who have been guilty of planning, preparing or
waging a war of aggression and of the commission of crimes and offenses in violation of laws and customs of war, are to
be held accountable. In the doctrine of incorporation, the Philippines abides by these principles and therefore has a right
to try persons that commit such crimes and most especially when it is committed againsts its citizens. It abides with it
even if it was not a signatory to these conventions by the mere incorporation of such principles in the constitution.
The United States is a party of interest because the country and its people have been equally, if not more greatly,
aggrieved by the crimes with which the petitioner is charged for. By virtue of Executive Order No. 68, the Military
Commission is a special military tribunal and that the rules as to parties and representation are not governed by the rules
of court but by the very provisions of this special law.
Facts : Shigenori Kuroda, a formerly a Lietenant-General of the japanese imperial army and
commanding general of the japanese imperial forces in the philippines during a period
covering 1943 and 1944 who is now charge before a military commission convened by the
chief of staff of the armed forces of the philippines with having unlawfully disregarded
and failed to discharge his duties as such command, permitting them to commit brutal
atrocities and other high crimes against noncombatant civilians and prisoners of the
imperial japanese forces in the violations of the laws and customer of war.

Petitioner argues that respondent Military Commission has no jurisdiction to try

petitioner for its acts committed in violation of Hague Convention and the Geneva
convention because the Philippines is not signatory to Hague Convention and signed the
Geneva only in 1947. He also challenges the participation of the two American attorneys in
the prosecution of his case on the ground that said attorneys are not qualified to
practice law in the Philippines.

Issues: 

1. Whether or not the executive order no. 68 is a ground for the violations of our
provision of constitutions law and to our local law.

2. Whether or not Atty. Melville S. Hussey and Robert Port is allowed to practice the law
professions in the philippines.

Ruling : The court holds that the Executive Order is valid and Constitutional.

Article 2 of our Constitution provides in its section 3 that ” The Philippines renounces
war as an instruments of national policy and adopts the generally accepted principle of
international law as part of the law of nation.”

In accordance with the generally accepted principles of international law of the present
day, including the Hague and Geneva Convention and significant precedents of international
jurisprudence established by the U.N, all the persons, military or civilian, who have been
guilty of planning, preparing, or waging a war of aggression and commission of the crimes
and offenses consequential and incidental thereto, in violation of the laws and customs of
war of humanity and civilization, are held accountable therefore. Consequently, in the
promulgation and enforcement of Executive Order no. 68, the President of the Philippines
has acted in conformity with the generally accepted principles and policies of
international law which are part our Constitution.

On the second issue, the court ruled that the appointment of the two American attorneys is
not violative of our national sovereignty. It is only fair and proper that the U.S which
has submitted the vindication of crimes against her government and her people to a
tribunal of our nation should be allowed representation in the trial of those very crimes.
The lest that we could do in the spirit of comity is to allow this representation in said
trial.

The petition was denied.

[G.R. No. L-2662. March 26, 1949. ]

SHIGENORI KURODA, Petitioner, v. Major General RAFAEL JALANDONI, Brigadier General CALIXTO

DUQUE, Colonel MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major
FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, Respondents. 

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for Petitioner. 

Fred Ruiz Castro, Federico Arenas, Mariano Yengco, Jr., Ricardo A. Arcilla, and S. Meville Hussey
for Respondents. 

SYLLABUS

1. CONSTITUTIONAL LAW; VALIDITY OF EXECUTIVE ORDER NO. 68 ESTABLISHING A NATIONAL WAR CRIMES
OFFICE. — Executive Order No. 68 which was issued by the President of the Philippines on the 29th day of July, 1947,
is valid in its section 3 that "The Philippines renounces war as an instrument of national policy, and adopts the
generally accepted principles of international law as part of the law of the nation." cralaw virtua1aw library

2. INTERNATIONAL LAW; VIOLATORS OF THE LAWS AND CUSTOMS OF WAR, OF HUMANITY AND CIVILIZATION,
LIABILITY AND RESPONSIBILITY OF. — In accordance with the generally accepted principles of international law of the
present day, including the Hague Convention, the Geneva Convention and significant precedents of international
jurisprudence established by the United Nations, all those persons, military of civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and
incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable
therefor. 

3. ID.; POWER OF THE PRESIDENT OF THE PHILIPPINES. — IN the promulgation and enforcement of Executive Order
No. 68, the President of the Philippines has acted in conformity with the generally accepted principles and policies and
international law which are part of our constitution. 

4. CONSTITUTIONAL LAW; POWER OF PRESIDENT AS COMMANDER IN CHIEF OR ARMED FORCES OF THE

PHILIPPINES. — The promulgation of said executive order is an exercise by the President of his powers as Commander
in Chief of all our armed forces. 

5. ID.; ID.; — The President as Commander in Chief is fully empowered to consummate this unfinished aspects of
war, namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No.
68. 

6. INTERNATIONAL LAW; HAGUE AND GENEVA CONVENTION FORM PART OF THE LAW OF THE PHILIPPINES; EVEN IF
THE PHILIPPINES WAS NOT SIGNATORY THEREOF, PROVISIONS OF PHILIPPINE CONSTITUTION HAS BEEN
COMPREHENSIVE TO THAT EFFECT. — The rules and regulations of the Hague and Geneva Conventions form part of
and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were
accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions.
Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is
not confined to the recognition of rules and principles of international law as contained in treaties to which our
government may have been or shall be a signatory. 

7. id.; rights and obligations of a nation were not erased by assumption of full sovereignty RIGHT TO TRY AND
PUNISH CRIMES THERETOFORE COMMITTED. — When the crimes charged against petitioner were allegedly
committed, the Philippines was under the sovereignty of the United States, and thus we were equally bound together
with the United Sates and with Japan, to the rights and obligations contained in the treaties between the belligerent
countries. These rights and obligations were not erased by our assumption of full sovereignty. If at right, on our own,
of trying and punishing those who committed crimes against our people. 

8. ID.; ID.; ID.; — War crimes committed against our people and our government while we are a Commonwealth, are
triable and punishable by our present Republic. 

9. MILITARY COMMISSION GOVERNED BY SPECIAL LAW. — Military Commission is a special military tribunal governed
by a special law and not by the Rules of Court which govern ordinary civil courts. 

10. MILITARY COMMISSION; COUNSEL APPEARING BEFORE IT NOT NECESSARILY A MEMBER OF THE PHILIPPINE
BAR. — There is nothing in Executive Order No. 68 which requires that counsel appearing before said commission
must be attorneys qualified to practice law in the Philippines in accordance with the Rules of Court. In fact, it is
common in military tribunals that counsel for the parties are usually military personnel who are neither attorneys nor
even possessed of legal training. 

11. ID.; TRIAL OF WAR CRIMES BEFORE PHILIPPINE COURTS; ALLOWANCE OF AMERICAN ATTORNEYS TO
REPRESENT UNITED STATES. — The appointment of the two American attorneys is not violative of our national
sovereignty. It is only fair and proper that the United States, which has submitted the vindication of crimes against
her government and her people to a tribunal of our nation, should be allowed representation in the trial of those very
crimes. If there has been any relinquishment of sovereignty, it has not been by our government by the United States
Government which has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit
of comity is to allow them representation in said trials. 

12. ID.; ID.; ID. — It is of common knowledge that the United States and its people have been equally, if not more
greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It can be
considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its citizens
and its government to a military tribunal of our country. 

13. ID.; JURISDICTION; SUPREME COURT WILL NOT INTERFERE WITH DUE PROCESSES OF MILITARY COMMISSION.
— The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged
which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by
having said petitioner in its custody, this court will not interfere with the due processes of such Military Commission. 

Per PERFECTO, J., dissenting: chanrob1es virtual 1aw library

14. ATTORNEYS AT LAW; ALIENS CANNOT PRACTICE LAW. — It appearing that Attys. Hussey and Port are aliens and
have not been authorized by the Supreme Court to practice law, they cannot appear as prosecutors in a case pending
before the War Crimes Commission. 

15. CONSTITUTIONAL LAW; LEGISLATIVE POWER VESTED IN CONGRESS; EXCEPTION. — While there is no express
provision in the fundamental law prohibiting the exercise of legislative power by agencies other than Congress, a
reading of the whole context of the Constitution would dispel any doubt as to the constitutional intent that the
legislative power is to be exercised exclusively by Congress, subject only to the veto power of the President, to his to
suspend the writ of habeas corpus, to place any part of the Philippines under martial law, to the rule-making power
expressly vested by the Constitution in the Supreme Court. 

16. ID.; ID.; SCOPE OF POWERS OF DIFFERENT GOVERNMENTAL DEPARTMENTS. — Because the powers vested by
our Constitution to the several departments of the government are in the nature of grants, not a recognition of pre-
existing powers, no department of the government may exercise any power or authority not expressly granted by the
Constitution or by law by virtue of express authority of the Constitution. 

17. ID.; ID.; POWER OF PRESIDENT TO PROMULGATE EXECUTIVE ORDER DEFINING AND ALLOCATING
JURISDICTION FOR PROSECUTION OF WAR CRIMES ON MILITARY COMMISSION. — The provision in Executive Order
No. 68 (series of 1947) of the President of the Philippines, that persons accused as war criminals shall be tried by
military commission, is clearly legislative in nature and intends to confer upon military commission jurisdiction to try
all persons charged with war crimes. But, the power to define and allocate jurisdiction for the prosecution of persons
accused of crimes is exclusively vested by the Constitution in Congress. 

18. ID.; ID.; POWER TO ESTABLISH GOVERNMENT OFFICE. — Executive Order No. establishes a National War Crimes
Office; but, the power to establish government offices is essentially legislative. 

19. ID.; RULE-MAKING POWER OF SUPREME COURT; PRESIDENT HAS NO POWER, MUCH LESS DELEGATE SUCH A
POWER, TO PROVIDE RULES OF PROCEDURE FOR CONDUCT OF TRIALS. — Executive Order No. 68 provides rules of
procedure for the conduct of trials before the War Crimes Office. This provision on procedural subject constitutes a
usurpation of the rule-making power vested by the Constitution in the Supreme Court. It further authorizes military
commissions to adopt additional rules of procedure. If the President of the Philippines cannot exercise the rule making
power vested by the Constitution in the Supreme Court, he cannot, with more reason, delegate that power to military
commissions. 

20. ID.; LEGISLATIVE POWER VESTED IN CONGRESS; USURPATION OF POWER TO APPROPRIATE FUNDS. —
Executive Order No. 68 appropriates funds for the expenses of the National War Crimes Office. This constitutes
another usurpation of legislative power, as the power to vote appropriations belongs to Congress. 

21. ID.; EMERGENCY POWERS OF PRESIDENT UNDER COMMONWEALTH ACTS NOS. 600, 620 AND 671. —
Commonwealth Acts Nos. 600, 620 and 671, granting the President of the Philippines emergency powers to
promulgate rules and regulations during national emergency has ceased to have effect since the liberation of the
Philippines, or at latest, upon the surrender of Japan on September 2, 1945. The absurdity of the contention that
these emergency acts continued in effect even after the surrender of Japan cannot be gainsaid. Only a few months
after liberation, and even before the surrender of Japan, the Congress started to function normally. To let the
hypothesis on continuance prevail will result in the existence of two distinct, separate and independent legislative
organs. — the Congress and the President of the Philippines. Should there be any disagreement between Congress
and the President, a possibility that no one can dispute, the President may take advantage of the long recess of
Congress (two-thirds of every year) to repeal and overrule legislative enactments of Congress, and may set up a
veritable system of dictatorship, absolutely repugnant to the letter and spirit of the Constitution. 

22. STATUTORY CONSTRUCTION; PRESUMPTION THAT LEGISLATIVE BODY DID NOT INTEND TO VIOLATE
CONSTITUTION. — It has never been the purpose of the National Assembly to extend the delegation (embodied in
Commonwealth Acts Nos. 600, 620 and 671) beyond the emergency created by war, as to extent it farther would be
violate of the express provisions of the Constitution. We are of the opinion that there is no doubt on this question;
but, if there could still be any, the same should be resolved in favor of the presumption that the National Assembly did
not intend to violate the fundamental law. 

23. CONSTITUTIONAL LAW; DUE PROCESS AND EQUAL PROTECTION OF LAW. — Executive Order No. 68 violates the
fundamental guarantees of due process and equal protection of the law, because it permits the admission of many
kinds of evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine
whether an accused is guilt or not beyond all reasonable doubt.

DECISION

MORAN, C.J. :

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who is now charged before a
Military Commission convened by the Chief of Staff of the Armed Forces of the Philippines, with having unlawfully
disregarded and failed "to discharge his duties as such commander to control the operations of members of his
command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and
prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war" — comes before this Court
seeking to establish the illegality of Executive Order No. 68 of the President of the Philippines; to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of petitioner’s case before the
Military Commission; and to permanently prohibit respondents from proceeding with the case of petitioner. 

In support of his case, petitioner tenders the following principal arguments: chanrob1es virtual 1aw library

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provisions of our
constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is
charged of ’crimes’ not based on law, national and international." Hence, petitioner argues — "That in view of the fact
that this commission has been empanelled by virtue of an unconstitutional law and an illegal order, this commission is
without jurisdiction to try herein petitioner." cralaw virtua1aw library

Second. — That the participation in the prosecution of the case against petitioner before the Commission in behalf of
the United States of America, of attorneys Melville Hussey and Robert Port, who are not attorneys authorized by the
Supreme Court to practice law in the Philippines, is a diminution of our personality as an independent state, and their
appointments as prosecutors are a violation of our Constitution for the reason that they are not qualified to practice
law in the Philippines. 

Third. — That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a party in
interest in the case. 

Executive Order No. 68, establishing a National War Crimes Office and prescribing rules and regulations governing the
trial of accused war criminals, was issued by the President of the Philippines on the 29th day of July, 1947. This Court
holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that — 
"The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of
international law as part of the law of the nation." cralaw virtua1aw library

In accordance with the generally accepted principles of international law of the present day, including the Hague
Convention, the Geneva Convention and significant precedents of international jurisprudence established by the
United Nations, all those persons, military or civilian, who have been guilty of planning, preparing or waging a war of
aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws
and customs of war, of humanity and civilization, are held accountable therefor. Consequently, in the promulgation
and enforcement of Executive Order No. 68, the President of the Philippines has acted in conformity with the generally
accepted principles and policies of international law which are part of our Constitution. 

The promulgation of said executive order is an exercise by the President of his powers as Commander in Chief of all
our armed forces, as upheld by this Court in the case of Yamashita v. Styer L-129, 42 Off. Gaz., 654) 1 when we said
—

"War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents of war may
remain pending which should be disposed of as in time of war.’An important incident to a conduct of war is the
adoption of measures by the military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law
of war.’ (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct., 2.) Indeed, the power to create a military commission for the trial
and punishment of war criminals is an aspect of waging war. And, in the language of a writer, a military commission
’has jurisdiction so long as a technical state of war continues. This includes the period of an armistice, or military
occupation, up to the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowls, Trial
of War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)" 

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of war,
namely, the trial and punishment of war criminals, through the issuance and enforcement of Executive Order No. 68. 

Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947. It cannot be denied that the rules and regulations of the Hague and Geneva
conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these
rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories
to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines
was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and
extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in
treaties to which our government may have been or shall be a signatory. 

Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was under the
sovereignty of the United States, and thus we were equally bound together with the United States and with Japan, to
the rights and obligations contained in the treaties between the belligerent countries. These rights and obligations
were not erased by our assumption of full sovereignty. If at all, our emergence as a free state entitles us to enforce
the right, on our own, of trying and punishing those who committed crimes against our people. In this connection, it is
well to remember what we have said in the case of Laurel v. Misa (76 Phil., 372): jgc:chanrobles.com.ph

". . . The change of our form of government from Commonwealth to Republic does not affect the prosecution of those
charged with the crime of treason committed during the Commonwealth, because it is an offense against the same
government and the same sovereign people . . ." cralaw virtua1aw library

By the same token, war crimes committed against our people and our government while we were a Commonwealth,
are triable and punishable by our present Republic. 

Petitioner challenges the participation of two American attorneys, namely, Melville S. Hussey and Robert Port, in the
prosecution of his case, on the ground that said attorneys are not qualified to practice law in the Philippines in
accordance with our Rules of Court and the appointment of said attorneys as prosecutors is violative of our national
sovereignty. 

In the first place, respondent Military Commission is a special military tribunal governed by a special law and not by
the Rules of Court which govern ordinary civil courts. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commissions is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commissions must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In fact, it is common in military tribunals that counsel for
the parties are usually military personnel who are neither attorneys nor even possessed of legal training. 

Secondly, the appointment of the two American attorneys is not violative of our national sovereignty. It is only fair
and proper that the United States, which has submitted the vindication of crimes against her government and her
people to a tribunal of our nation, should be allowed representation in the trial of those very crimes. If there has been
any relinquishment of sovereignty, it has not been by our government but by the United States Government which
has yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow
them representation in said trials. 

Alleging that the United States is not a party in interest in the case, petitioner challenges the personality of attorneys
Hussey and Port as prosecutors. It is of common knowledge that the United States and its people have been equally,
if not more greatly, aggrieved by the crimes with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country. 

The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes charged
which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person of the petitioner by
having said petitioner in its custody, this Court will not interfere with the due processes of such Military Commission. 

Paras, Feria, Pablo, Bengzon, Briones, Tuason, Montemayor and Reyes, JJ., concur. 

Separate Opinions

PERFECTO. J., dissenting: chanrob1es virtual 1aw library

A military commission was empaneled on December 1, 1948, to try Lt. Gen. Shigenori Kuroda for violation of the laws
and customs of land warfare. 

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law, were
appointed prosecutors representing the American CIC in the trial of the case. 
The commission was empaneled under the authority of Executive Order No. 68 of the President of the Philippines, the
validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the personality of
Attorneys Hussey and Port to appear as prosecutors before the commission. 

The charges against petitioner has been filed since June 26, 1948, in the name of the People of the Philippines as
accusers. 

We will consider briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that they are
aliens and have not been authorized by the Supreme Court to practice law, there could not be any question that said
persons cannot appear as prosecutors in petitioner’s case, as with such appearance they would be practicing law
against the law. 

Said violation vanishes, however, into insignificance at the side of the momentous questions involved in the challenge
against the validity of Executive Order No. 68. Said order is challenged on several constitutional grounds. To get a
clear idea of the questions raised, it is necessary to read the whole context of said order which is reproduced as
follows: jgc:chanrobles.com.ph

"EXECUTIVE ORDER No. 68

"ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND REGULATIONS GOVERNING THE
TRIAL OF ACCUSED WAR CRIMINALS. 

"I, Manuel Roxas, President of the Philippines, by virtue of the powers vested in me by the Constitution and laws of
the Philippines, do hereby establish a National War Crimes Office charged with the responsibility of accomplishing the
speedy trial of all Japanese accused of war crimes committed in the Philippines, and prescribe the rules and
regulations governing such trial. 

"The National War Crimes Office is established within the Office of the Judge Advocate General of the Army of the
Philippines and shall function under the direction, supervision and control of the Judge Advocate General. It shall
proceed to collect from all available sources evidence of war crimes committed in the Philippines from the
commencement of hostilities by Japan in December, 1941, maintain a record thereof, and bring about the prompt trial
of the accused. 

"The National War Crimes Office shall maintain direct liaison with the Legal Section, General Headquarters, Supreme
Commander for the Allied Powers, and shall exchange with the said Office information and evidence of war crimes. 

"The following rules and regulations shall govern the trial of persons accused as war criminals: jgc:chanrobles.com.ph

"I. ESTABLISHMENT OF MILITARY COMMISSIONS

"(a) General. — Persons accused as war criminals shall be tried by military commissions to be convened by, or under
the authority of, the President of the Philippines. 

"II. JURISDICTION

"(a) Over Persons. — The military commissions appointed hereunder shall have jurisdiction over all persons charged
with war crimes who are in the custody of the convening authority at the time of the trial. 
"(b) Over Offenses. — The military commissions established hereunder shall have jurisdiction over all offenses
including, but not limited to, the following: jgc:chanrobles.com.ph

"(1) The planning, preparation, initiation or waging of a war of aggression or a war in violation of international
treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of
the foregoing. 

"(2) Violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment
or deportation to slave labor or for any other purpose of civilian population of or in occupied territory; murder or ill-
treatment of prisoners of war or internees or persons on the seas or elsewhere; improper treatment of hostages;
plunder of public or private property; wanton destruction of cities, towns or villages; or devastation not justified by
military necessity. 

"(3) Murder, extermination, enslavement, deportation and other inhuman acts committed against civilian populations
before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with,
any crime defined herein, whether or not in violation of the local laws. 

"III. MEMBERSHIP OF COMMISSIONS

"(a) Appointment. — The members of each military commission shall be appointed by the President of the Philippines,
or under authority delegated by him. Alternates may be appointed by the convening authority. Such alternates shall
attend all sessions of the commission, and in case of illness or other incapacity of any principal member, an alternate
shall take the place of that member. Any vacancy among the members or alternates, occurring after a trial has begun,
may be filed by the convening authority, but the substance of all proceedings had and evidence taken in that case
shall be made known to the said new member or alternate. This fact shall be announced by the president of the
commission in open court. 

"(b) Number of Members. — Each commission shall consist of not less than three (3) members. 

"(c) Qualifications. — The convening authority shall appoint to the commission persons whom he determines to be
competent to perform the duties involved and not disqualified by personal interest or prejudice, provided that no
person shall be appointed to hear a case in which he personally investigated, or wherein his presence as a witness is
required. One specially qualified member shall be designated as the law member whose ruling is final in so far as
concerns the commission on an objection to the admissibility of evidence offered during the trial. 

"(d) Voting. — Except as to the admissibility of evidence, all rulings and findings of the Commission shall be by
majority vote, except that conviction and sentence shall be by the affirmative vote of not less than two-thirds (2/3) of
the members present. 

"(e) Presiding Member. — In the event that the convening authority does not name one of the members as the
presiding member, the senior officer among the members of the Commission present shall preside. 

"IV. PROSECUTORS

"(a) Appointment. — The convening authority shall designate one or more persons to conduct the prosecution before
each commission. 
"(b) Duties. — The duties of the prosecutors are: jgc:chanrobles.com.ph

"(1) To prepare and present charges and specifications for reference to a commission. 

"(2) To prepare cases for trial and to conduct the prosecution before the commission of all cases referred for trial. 

V. POWERS AND PROCEDURE OF COMMISSIONS

"(a) Conduct of the Trial. — A Commission shall: jgc:chanrobles.com.ph

"(1) Confine each trial strictly to a fair and expeditious hearing on the issues raised by the charges, excluding
irrelevant issues or evidence and preventing any unnecessary delay or interference. 

"(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment therefor. 

"(3) Hold public sessions except when otherwise decided by the commission. 

"(4) Hold each session at such time and place as it shall determine, or as may be directed by the convening
authority. 

"(b) Rights of the Accused. — The accused shall be entitled: jgc:chanrobles.com.ph

"(1) To have in advance of the trial a copy of the charges and specifications clearly worded so as to apprise the
accused of each offense charged. 

"(2) To be represented, prior to and during trial, by counsel appointed by the convening authority or counsel of his
own choice, or to conduct his own defense. 

"(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in support of his defense,
and cross- examine each adverse witness who personally appears before the commission. 

"(4) To have the substance of the charges and specifications, the proceedings and any documentary evidence
translated, when he is unable otherwise to understand them. 

"(c) Witnesses. — The Commission shall have power: jgc:chanrobles.com.ph

"(1) To summon witnesses and require their attendance and testimony; to administer oaths or affirmations to
witnesses and other persons and to question witnesses. 

"(2) To require the production of documents and other evidentiary material. 

"(3) To delegate to the Prosecutors appointed by the convening authority the powers and duties set forth in (1) and
(2) above. 

"(4) To have evidence taken by a special commissioner appointed by the commission. 

"(d) Evidence. 

"(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving or disproving the
charge, or such as in the commission’s opinion would have probative value in the mind of a reasonable man. The
commission shall apply the rules of evidence and pleading set forth herein with the greatest liberality to achieve
expeditious procedure. In particular, and without limiting in any way the scope of the foregoing general rules, the
following evidence may be admitted: jgc:chanrobles.com.ph

"(a) Any document, irrespective of its classification, which appears to the commission to have been signed or issued
by any officer, department, agency or member of the armed forces of any Government without proof of the signature
or of the issuance of the document. 

"(b) Any report which appears to the commission to have been signed or issued by the International Red Cross or a
member thereof, or by a doctor of medicine or a member of any medical service personnel, or by any investigator or
intelligence officer, or by any other person whom the commission considers as possessing knowledge of the matters
contained in the report. 

"(c) Affidavits, depositions or other signed statements. 

"(d) Any diary, letter or other document, including sworn or unsworn statements, appearing to the commission to
contain information relating to the charge. 

"(e) A copy of any document or other secondary evidence of the contents, if the original is not immediately available. 

"(2) The commission shall take judicial notice of facts of common knowledge, official government documents of any
nation, and the proceedings, records and findings of military or other agencies of any of the United Nations. 

"(3) A commission may require the prosecution and the defense to make a preliminary offer of proof, whereupon the
commission may rule in advance on the admissibility of such evidence. 

"(4) The official position of the accused shall not absolve him from responsibility, nor be considered in mitigation of
punishment. Further, action pursuant to an order of the accused’s superior, or of his Government, shall not constitute
a defense, but may be considered in mitigation of punishment if the commission determines that justice so requires. 

"(5) All purported confessions or statements of the accused shall be admissible in evidence without any showing that
they were voluntarily made. If it is shown that such confession or statement was procured by means which the
commission believes to have been of such a character that they may have caused the accused to make a false
statement, the commission may strike out or disregard any such portion thereof as was so procured. 

"(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows, unless modified by
the commission to suit the particular circumstances: jgc:chanrobles.com.ph

"(1) Each charge and specification shall be read, or its substance stated, in open court. 

"(2) The presiding member shall ask each accused whether he pleads ’Guilty’ or ’Not guilty.’

"(3) The prosecution shall make its opening statement. 

"(4) The presiding member may, at this or any other time, require the prosecutor to state what evidence he proposes
to submit to the commission and the commission thereupon may rule upon the admissibility of such evidence. 

"(5) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the
prosecution, the commission may, on motion of the defense for a finding of not guilty, consider and rule whether the
evidence before the commission supports the charges against the accused. The commission may defer action on any
such motion and permit or require the prosecution to reopen its case and produce any further available evidence. 

"(6) The defense may make an opening statement prior to presenting its case. The presiding member may, at this or
any other time, require the defense to state what evidence it proposes to submit to the commission, where upon the
commission may rule upon the admissibility of such evidence. 

"(7) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and
defense may introduce such evidence in rebuttal as the commission may rule as being admissible. 

"(8) The defense, and thereafter the prosecution, shall address the commission. 

"(9) The commission thereafter shall consider the case in closed session and unless otherwise directed by the
convening authority, announce in open court its judgment and sentence, if any. The commission may state the
reasons on which judgment is based. 

"(f) Record of Proceedings. — Each commission shall make a separate record of its proceedings in the trial of each
case brought before it. The record shall be prepared by the prosecutor under the direction of the commission and
submitted to the defense counsel. The commission shall be responsible for its accuracy. Such record; certified by the
presiding member of the commission or his successor, shall be delivered to the convening authority as soon as
possible after the trial. 

"(g) Sentence. — The commission may sentence an accused, upon conviction, to death by hanging or shooting,
imprisonment for life or for any less term, fine, or such other punishment as the commission shall determine to be
proper. 

"(h) Approval of Sentence. — No sentence of a military commission shall be carried into effect until approved by the
Chief of Staff: Provided, That no sentence of death or life imprisonment shall be carried into execution until confirmed
by the President of the Philippines. For the purpose of his review, the Chief of Staff shall create a Board of Review to
be composed of not more than three officers none of whom shall be on duty with or assigned to the Judge Advocate
General’s Office. The Chief of Staff shall have the authority to approve, mitigate, remit in whole or in part, commute,
suspend, reduce or otherwise alter the sentence imposed, or (without prejudice to the accused) remand the case for
rehearing before a new military commission; but he shall not have authority to increase the severity of the sentence.
Except as herein otherwise provided, the judgment and sentence of a commission shall be final and not subject to
review by any other tribunal. 

"VI. RULE-MAKING POWER

"Supplementary Rules and Forms. — Each commission shall adopt rules and forms to govern its procedure, not
inconsistent with the provisions of this Order, or such rules and forms as may be prescribed by the convening
authority or by the President of the Philippines. 
"VII. The amount of seven hundred thousand pesos is hereby set aside out of the appropriations for the Army of the
Philippines for use by the National War Crimes Office in the accomplishment of its mission as hereinabove set forth,
and shall be expended in accordance with the recommendations of the Judge Advocate General as approved by the
President. The buildings, textures, installations, messing, and billeting equipment and other property heretofore used
by the Legal Section, Manila Branch, of the General Headquarters, Supreme Commander for the Allied Powers, which
will be turned over by the United States Army to the Philippine Government through the Foreign Liquidation
Commission and the Surplus Property Commission are hereby specifically reserved for use of the National War Crimes
Office. 

"Executive Order No. 64, dated August 16, 1940, is hereby repealed. 

"Done in the City of Manila, this 29th day of July, in the year of Our Lord, nineteen hundred and forty-seven, and of
the Independence of the Philippines, the second. 

"MANUEL ROXAS

"President of the Philippines

"By the President: jgc:chanrobles.com.ph

"EMILIO ABELLO

"Chief of the Executive Office" 

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of legislative measure, without the benefit of congressional enactment. 

The first question that is thrust at our face, spearheading a group of other no less important questions, is whether or
not the President of the Philippines may exercise the legislative power expressly vested in Congress by the
Constitution. 

The Constitution provides: jgc:chanrobles.com.ph

"The Legislative powers shall be vested in a Congress of the Philippines, which shall consist of a Senate and a House
of Representatives." (Section 1, Article VI.) 

While there is no express provision in the fundamental law prohibiting the exercise of legislative power by agencies
other than Congress, a reading of the whole context of the Constitution would dispel any doubt as to the constitutional
intent that the legislative power is to be exercised exclusively by Congress, subject only to the veto power of the
President of the Philippines, to the specific provisions which allow the President of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law, and to the rule-
making power expressly vested by the Constitution in the Supreme Court. 

There cannot be any question that the members of the Constitutional Convention were believers in the tripartite
system of government as originally enunciated by Aristotle, further elaborated by Montesquieu and accepted and
practiced by modern democracies, especially the United States of America, whose Constitution, after which ours has
been patterned, has allocated the three powers of government — legislative, executive, judicial — to distinct and
separate departments of government. 

Because the powers vested by our Constitution to the several departments of the government are in the nature of
grants, not a recognition of pre-existing powers, no department of government may exercise any power or authority
not expressly granted by the Constitution or by law by virtue of express authority of the Constitution. 

Executive Order No. 68 establishes a National War Crimes Office, and the power to establish government office is
essentially legislative. 

The order provides that persons accused as war criminals shall be tried by military commissions. Whether such a
provision is substantive or adjective, it is clearly legislative in nature. It confers upon military commissions jurisdiction
to try all persons charged with war crimes. The power to define and allocate jurisdiction for the prosecution of persons
accused of any crime is exclusively vested by the Constitution in Congress. 

It provides rules of procedure for the conduct of trials. This provision on procedural subject constitutes a usurpation of
the rule- making power vested by the Constitution in the Supreme Court. 

It authorizes military commissions to adopt additional rules of procedure. If the President of the Philippines cannot
exercise the rule-making power vested by the Constitution in the Supreme Court, he cannot, with more reason,
delegate that power to military commissions. 

It appropriates the sum of P700,000 for the expenses of the National War Crimes Office established by the said
Executive Order No. 68. This constitutes another usurpation of legislative power as the power to vote appropriations
belongs to Congress. 

Executive Order No. 68, is, therefore, null and void, because, through it, the President of the Philippines usurped
powers expressly vested by the Constitution in Congress and in the Supreme Court. 

Challenged to show the constitutional or legal authority under which the President of the Philippines issued Executive
Order No. 68, respondents could not give any definite answer. They attempted, however, to suggest that the
President of the Philippines issued Executive Order No. 68 under the emergency powers granted to him by
Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and Commonwealth Act No. 671, both of
which are transcribed below: jgc:chanrobles.com.ph

"COMMONWEALTH ACT No. 600

"AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND
REGULATIONS TO SAFEGUARD THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILLITY OF ITS
INHABITANTS. 

"Be it enacted by the National Assembly of the Philippines: jgc:chanrobles.com.ph

"SECTION 1. The existence of war in many parts of the world has created a national emergency which makes it
necessary to invest the President of the Philippines with extraordinary powers in order to safeguard the integrity of
the Philippines and to insure the tranquillity of its inhabitants, by suppressing espionage, lawlessness, and all
subversive activities, by preventing or relieving unemployment, by insuring to the people adequate shelter and
clothing and sufficient food supply, and by providing means for the speedy evacuation of the civilian population, the
establishment of an air protective service, and the organization of volunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public. To carry out this policy the President is authorized
to promulgate rules and regulations which shall have the force and effect of law until the date of adjournment of the
next regular session of the First Congress of the Philippines, unless sooner amended or repealed by the Congress of
the Philippines. Such rules and regulations may embrace the following objects: (1) to suppress espionage and other
subversive activities; (2) to require all able- bodied citizens (a) when not engaged in any lawful occupation, to engage
in farming or other productive activities or (b) to perform such services as may be necessary in the public interest; (3)
to take over farm lands in order to prevent failure or shortage of crops and avert hunger and destitution; (4) to take
over industrial establishments in order to insure adequate production, controlling wages and profits therein; (5) to
prohibit lockouts and strikes whenever necessary to prevent the unwarranted suspension of work in productive
enterprises or in the interest of national security; (6) to regulate the normal hours of work for wage-earning and
salaried employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of labor
among the productive enterprises; (8) to commander ships and other means of transportation in order to maintain, as
much as possible, adequate and continued transportation facilities; (9) to requisition and take over any public service
or enterprise for use or operation by the Government; (10) to regulate rents and the prices of articles or commodities
of prime necessity, both imported and locally produced or manufactured; and (11) to prevent, locally or generally,
scarcity, monopolization, hoarding, injurious speculations, and private controls affecting the supply, distribution, and
movement of foods, clothing, fuel, fertilizers, chemicals, building materials, implements, machinery, and equipment
required in agriculture and industry, with power to requisition these commodities subject to the payment of just
compensation. (As amended by Com. Act No. 620.) 

"SEC. 2. For the purpose of administering this Act and carrying out its objectives, the President may designate any
officer, without additional compensation, or any department, bureau, office, or instrumentality of the National
Government. 

"SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act or of any of the rules
or regulations promulgated by the President under the authority of section one of this Act shall be punished by
imprisonment of not more than ten years or by a fine of not more than ten thousand pesos, or by both. If such
violation is committed by a firm or corporation, the manager, managing director, or person charged with the
management of the business of such firm, or corporation shall be criminally responsible therefor. 

"SEC. 4. The President shall report to the National Assembly within the first ten days from the date of the opening of
its next regular session whatever action has been taken by him under the authority herein granted. 

"SEC. 5. To carry out the purposes of this Act, the President is authorized to spend such amounts as may be
necessary from the sum appropriated under section five of Commonwealth Act Numbered Four hundred and ninety-
eight. 

"SEC. 6. If any provision of this Act shall be declared by any court of competent jurisdiction to be unconstitutional and
void, such declaration shall not invalidate the remainder of this Act. 

"SEC. 7. This Act shall take effect upon its approval. 

"Approved, August 19, 1940." cralaw virtua1aw library

"COMMONWEALTH ACT No. 671

"AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING THE PHILIPPINES AND
AUTHORIZING THE PRESIDENT TO PROMULGATE RULES AND REGULATIONS TO MEET SUCH EMERGENCY. 

"Be it enacted by the National Assembly of the Philippines: jgc:chanrobles.com.ph

"SECTION 1. The existence of war between the United States and other countries of Europe and Asia, which involves
the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting
emergency. 

"SEC. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is hereby authorized,
during the existence of the emergency, to promulgate such rules and regulations as he may deem necessary to carry
out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer
the seat of the Government or any of its subdivisions, branches, departments, offices, agencies or instrumentalities;
(b) to reorganize the Government of the Commonwealth including the determination of the order of precedence of the
heads of the Executive Departments; (c) to create new subdivisions, branches, departments, offices, agencies or
instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and
appropriations which would lapse or otherwise become inoperative, and to modify or suspend the operation or
application of those of an administrative character; (e) to impose new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the
expenditure of the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur
in overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the Government to
fulfill its responsibilities and to maintain and enforce its authority. 

"SEC. 3. The President of the Philippines shall as soon as practicable upon the convening of the Congress of the
Philippines report thereto all the rules and regulations promulgated by him under the powers herein granted. 

"SEC. 4. This Act shall take effect upon its approval, and the rules and regulations promulgated hereunder shall be in
force and effect until the Congress of the Philippines shall otherwise provide. 

"Approved, December 16, 1941." cralaw virtua1aw library

The above Acts cannot validly be invoked, because they ceased to have any effect much before Executive Order No.
68 was issued on July 29, 1947. Said Acts had elapsed upon the liberation of the Philippines from the Japanese forces
or, at the latest, when the surrender of Japan was signed in Tokyo on September 2, 1945. 

When both Acts were enacted by the Second National Assembly, we happened to have taken direct part in their
consideration and passage, not only as one of the members of said legislative body but as chairman of the Committee
on Third Reading, popularly known as the "Little Senate." We are, therefore, in a position to state that said measures
were enacted by the Second National Assembly for the purpose of facing the emergency of an impending war and of
the Pacific War that finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which, under the exceptional circumstances then prevailing, legislative powers were
delegated to the President of the Philippines, by virtue of the following provisions of the Constitution: jgc:chanrobles.com.ph

"In times of war or other national emergency, the Congress may by law authorize the President, for a limited period
and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared
national policy." (Article VI, section 26.) 

It has never been the purpose of the National Assembly to extend the delegation beyond the emergence created by
the war, as to extend it farther would be violative of the express provisions of the Constitution. We are of the opinion
that there is no doubt on this question; but if there could still be any, the same should be resolved in favor of the
presumption that the National Assembly did not intend to violate the fundamental law. 

The absurdity of the contention that the emergency Acts continued in effect even after the surrender of Japan can not
be gainsaid. Only a few months after liberation and even before the surrender of Japan, or since the middle of 1945,
the Congress started to function normally. In the hypothesis that the contention can prevail, then, since 1945, that is,
four years ago, even after the Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two distinct, separate and independent legislative organs, — Congress and the
President of the Philippines — would have been and would continue enacting laws, the former to enact laws of every
nature including those of emergent character, and the latter to enact laws, in the form of executive orders, under the
so-called emergency powers. The situation would be pregnant with dangers to peace and order, to the rights and
liberties of the people, and to Philippine democracy. 

Should there be any disagreement between Congress and the President of the Philippines, a possibility that no one
can dispute, the President of the Philippines may take advantage of the long recess of Congress (two-thirds of every
year) to repeal and overrule legislative enactments of Congress, and may set up a veritable system of dictatorship,
absolutely repugnant to the letter and spirit of the Constitution. 

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental guarantees of the
due process and equal protection of the law. It is especially so, because it permits the admission of many kinds of
evidence by which no innocent person can afford to get acquittal, and by which it is impossible to determine whether
an accused is guilty or not beyond all reasonable doubt. 

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulations governing the trial of
twelve criminals, issued by General Douglas MacArthur, Commander in Chief of the United States Armed Forces in
Western Pacific, for the purpose of trying, among others, Generals Yamashita and Homma. What we said in our
concurring and dissenting opinion to the decision promulgated on December 19, 1945, in the Yamashita case, L-129,
1 and in our concurring and dissenting opinion to the resolution of January 23, 1946, in disposing the Homma case, L-
244, 2 are perfectly applicable to the offensive rules of evidence embodied in Executive Order No. 68. Said rules of
evidence are repugnant to conscience as under them no justice can be expected. 

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to declare Executive
Order No. 68 null and void and to grant the petition. 
 SUPREME COURT OF THE UNITED STATES

SALIM AHMED HAMDAN, PETITIONER v. DONALD

H. RUMSFELD, SECRETARY OF DEFENSE, et al.
June 29, 2006

on writ of certiorari to the united states court of appeals for the district of columbia circuit

    Justice Stevens announced the judgment of the Court and delivered the opinion of the
Court with respect to Parts I through IV, Parts VI through VI–D–iii, Part VI–D–v, and Part
VII, and an opinion with respect to Parts V and VI–D–iv, in which Justice Souter, Justice
Ginsburg, and Justice Breyer join.

    Petitioner Salim Ahmed Hamdan, a Yemeni national, is in custody at an American prison in

Guantanamo Bay, Cuba. In November 2001, during hostilities between the United States and the
Taliban (which then governed Afghanistan), Hamdan was captured by militia forces and turned
over to the U. S. military. In June 2002, he was transported to Guantanamo Bay. Over a year later,
the President deemed him eligible for trial by military commission for then-unspecified crimes.
After another year had passed, Hamdan was charged with one count of conspiracy “to commit …
offenses triable by military commission.” 

    Hamdan filed petitions for writs of habeas corpus and mandamus to challenge the Executive
Branch’s intended means of prosecuting this charge. He concedes that a court-martial constituted in
accordance with the Uniform Code of Military Justice (UCMJ) would have authority to try him.
His objection is that the military commission the President has convened lacks such authority, for
two principal reasons: First, neither congressional Act nor the common law of war supports trial by
this commission for the crime of conspiracy—an offense that, Hamdan says, is not a violation of
the law of war. Second, Hamdan contends, the procedures that the President has adopted to try him
violate the most basic tenets of military and international law, including the principle that a
defendant must be permitted to see and hear the evidence against him....

    For the reasons that follow, we conclude that the military commission convened to try Hamdan
lacks power to proceed because its structure and procedures violate both the UCMJ and the Geneva
Conventions. Four of us also conclude that the offense with which Hamdan has been charged is not
an “offens[e] that by … the law of war may be tried by military commissions.” 

    On September 11, 2001, agents of the al Qaeda terrorist organization hijacked commercial
airplanes and attacked the World Trade Center in New York City and the national headquarters of
the Department of Defense in Arlington, Virginia. Americans will never forget the devastation
wrought by these acts. Nearly 3,000 civilians were killed.

    Congress responded by adopting a Joint Resolution authorizing the President to “use all
necessary and appropriate force against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks … in order to prevent any future acts
of international terrorism against the United States by such nations, organizations or persons.”
Authorization for Use of Military Force (AUMF). Acting pursuant to the AUMF, and having
determined that the Taliban regime had supported al Qaeda, the President ordered the Armed
Forces of the United States to invade Afghanistan. In the ensuing hostilities, hundreds of
individuals, Hamdan among them, were captured and eventually detained at Guantanamo Bay.

    On November 13, 2001, while the United States was still engaged in active combat with the
Taliban, the President issued a comprehensive military order intended to govern the “Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,” 66 Fed. Reg. 57833
(hereinafter November 13 Order or Order). Those subject to the November 13 Order include any
noncitizen for whom the President determines “there is reason to believe” that he or she (1) “is or
was” a member of al Qaeda or (2) has engaged or participated in terrorist activities aimed at or
harmful to the United States. Any such individual “shall, when tried, be tried by military
commission for any and all offenses triable by military commission that such individual is alleged
to have committed, and may be punished in accordance with the penalties provided under
applicable law, including imprisonment or death.” The November 13 Order vested in the Secretary
of Defense the power to appoint military commissions to try individuals subject to the Order, but
that power has since been delegated to John D. Altenberg, Jr., a retired Army major general and
longtime military lawyer who has been designated “Appointing Authority for Military
Commissions.”

    On July 3, 2003, the President announced his determination that Hamdan and five other
detainees at Guantanamo Bay were subject to the November 13 Order and thus triable by military
commission. In December 2003, military counsel was appointed to represent Hamdan. Two months
later, counsel filed demands for charges and for a speedy trial pursuant to Article 10 of the UCMJ.
On February 23, 2004, the legal adviser to the Appointing Authority denied the applications, ruling
that Hamdan was not entitled to any of the protections of the UCMJ. Not until July 13, 2004, after
Hamdan had commenced this action in the United States District Court for the Western District of
Washington, did the Government finally charge him with the offense for which, a year earlier, he
had been deemed eligible for trial by military commission.

    The charging document, which is unsigned, contains 13 numbered paragraphs. The first two
paragraphs recite the asserted bases for the military commission’s jurisdiction—namely, the
November 13 Order and the President’s July 3, 2003, declaration that Hamdan is eligible for trial
by military commission. The next nine paragraphs, collectively entitled “General Allegations,”
describe al Qaeda’s activities from its inception in 1989 through 2001 and identify Osama bin
Laden as the group’s leader. Hamdan is not mentioned in these paragraphs.
    Only the final two paragraphs, entitled “Charge: Conspiracy,” contain allegations against
Hamdan. Paragraph 12 charges that “from on or about February 1996 to on or about November 24,
2001,” Hamdan “willfully and knowingly joined an enterprise of persons who shared a common
criminal purpose and conspired and agreed with [named members of al Qaeda] to commit the
following offenses triable by military commission: attacking civilians; attacking civilian objects;
murder by an unprivileged belligerent; and terrorism.”  There is no allegation that Hamdan had any
command responsibilities, played a leadership role, or participated in the planning of any activity.

    Paragraph 13 lists four “overt acts” that Hamdan is alleged to have committed sometime between
1996 and November 2001 in furtherance of the “enterprise and conspiracy”: (1) he acted as Osama
bin Laden’s “bodyguard and personal driver,” “believ[ing]” all the while that bin Laden “and his
associates were involved in” terrorist acts prior to and including the attacks of September 11, 2001;
(2) he arranged for transportation of, and actually transported, weapons used by al Qaeda members
and by bin Laden’s bodyguards (Hamdan among them); (3) he “drove or accompanied [O]sama bin
Laden to various al Qaida-sponsored training camps, press conferences, or lectures,” at which bin
Laden encouraged attacks against Americans; and (4) he received weapons training at al Qaeda-
sponsored camps.

    After this formal charge was filed, the United States District Court for the Western District of
Washington transferred Hamdan’s habeas and mandamus petitions to the United States District
Court for the District of Columbia. Meanwhile, a Combatant Status Review Tribunal (CSRT)
convened pursuant to a military order issued on July 7, 2004, decided that Hamdan’s continued
detention at Guantanamo Bay was warranted because he was an “enemy combatant.” Separately,
proceedings before the military commission commenced....

    On November 7, 2005, we granted certiorari to decide whether the military commission
convened to try Hamdan has authority to do so, and whether Hamdan may rely on the Geneva
Conventions in these proceedings.

II

    On February 13, 2006, the Government filed a motion to dismiss the writ of certiorari. The
ground cited for dismissal was the recently enacted Detainee Treatment Act of 2005. We postponed
our ruling on that motion pending argument on the merits, and now deny it...

IV

    The military commission, a tribunal neither mentioned in the Constitution nor created by statute,
was born of military necessity. Though foreshadowed in some respects by earlier tribunals like the
Board of General Officers that General Washington convened to try British Major John André for
spying during the Revolutionary War, the commission “as such” was inaugurated in 1847. As
commander of occupied Mexican territory, and having available to him no other tribunal, General
Winfield Scott that year ordered the establishment of both “ ‘military commissions’ ” to try
ordinary crimes committed in the occupied territory and a “council of war” to try offenses against
the law of war.... 
    Exigency alone, of course, will not justify the establishment and use of penal tribunals not
contemplated by Article I, §8 and Article III, §1 of the Constitution unless some other part of that
document authorizes a response to the felt need. And that authority, if it exists, can derive only
from the powers granted jointly to the President and Congress in time of war. 

    The Constitution makes the President the “Commander in Chief” of the Armed Forces, Art. II,
§2, cl. 1, but vests in Congress the powers to “declare War … and make Rules concerning Captures
on Land and Water,” Art. I, §8, cl. 11, to “raise and support Armies,” id., cl. 12, to “define and
punish … Offences against the Law of Nations,” id., cl. 10, and “To make Rules for the
Government and Regulation of the land and naval Forces.”The interplay between these powers was
described by Chief Justice Chase in the seminal case of Ex parte Milligan:

“The power to make the necessary laws is in Congress; the power to execute in the President. Both
powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its
due exercise. But neither can the President, in war more than in peace, intrude upon the proper
authority of Congress, nor Congress upon the proper authority of the President… . Congress cannot
direct the conduct of campaigns, nor can the President, or any commander under him, without the
sanction of Congress, institute tribunals for the trial and punishment of offences, either of soldiers
or civilians, unless in cases of a controlling necessity, which justifies what it compels, or at least
insures acts of indemnity from the justice of the legislature.”

    Whether Chief Justice Chase was correct in suggesting that the President may constitutionally
convene military commissions “without the sanction of Congress” in cases of “controlling
necessity” is a question this Court has not answered definitively, and need not answer today. For
we held in Quirin that Congress had, through Article of War 15, sanctioned the use of military
commissions in such circumstances. Article 21 of the UCMJ, the language of which is substantially
identical to the old Article 15 and was preserved by Congress after World War II, reads as follows:

“Jurisdiction of courts-martial not exclusive.

“The provisions of this code conferring jurisdiction upon courts-martial shall not be construed as
depriving military commissions, provost courts, or other military tribunals of concurrent
jurisdiction in respect of offenders or offenses that by statute or by the law of war may be tried by
such military commissions, provost courts, or other military tribunals.” 

    We have no occasion to revisit Quirin’s controversial characterization of Article of War 15 as

congressional authorization for military commissions. Contrary to the Government’s assertion,
however, even Quirin did not view the authorization as a sweeping mandate for the President to
“invoke military commissions when he deems them necessary.” Rather, the Quirin Court
recognized that Congress had simply preserved what power, under the Constitution and the
common law of war, the President had had before 1916 to convene military commissions—with the
express condition that the President and those under his command comply with the law of war.
That much is evidenced by the Court’s inquiry, following its conclusion that Congress had
authorized military commissions, into whether the law of war had indeed been complied with in
that case. 
The Government would have us dispense with the inquiry that the Quirin Court undertook and find
in either the AUMF or the DTA specific, overriding authorization for the very commission that has
been convened to try Hamdan. Neither of these congressional Acts, however, expands the
President’s authority to convene military commissions. First, while we assume that the AUMF
activated the President’s war powers, see Hamdi v.Rumsfeld (2004), and that those powers include
the authority to convene military commissions in appropriate circumstances, there is nothing in the
text or legislative history of the AUMF even hinting that Congress intended to expand or alter the
authorization set forth in Article 21 of the UCMJ.

    Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike
either Article 21 or the AUMF, was enacted after the President had convened Hamdan’s
commission, it contains no language authorizing that tribunal or any other at Guantanamo Bay.... 

Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential
authority to convene military commissions in circumstances where justified under the “Constitution
and laws,” including the law of war. Absent a more specific congressional authorization, the task of
this Court is, as it was in Quirin, to decide whether Hamdan’s military commission is so justified. It
is to that inquiry we now turn.

    The common law governing military commissions may be gleaned from past practice and what
sparse legal precedent exists. Commissions historically have been used in three situations. First,
they have substituted for civilian courts at times and in places where martial law has been declared.
Their use in these circumstances has raised constitutional questions, but is well recognized. Second,
commissions have been established to try civilians “as part of a temporary military government
over occupied enemy territory or territory regained from an enemy where civilian government
cannot and does not function.” Illustrative of this second kind of commission is the one that was
established, with jurisdiction to apply the German Criminal Code, in occupied Germany following
the end of World War II.

    The third type of commission, convened as an “incident to the conduct of war” when there is a
need “to seize and subject to disciplinary measures those enemies who in their attempt to thwart or
impede our military effort have violated the law of war,” has been described as “utterly different”
from the other two. Not only is its jurisdiction limited to offenses cognizable during time of war,
but its role is primarily a factfinding one—to determine, typically on the battlefield itself, whether
the defendant has violated the law of war. The last time the U. S. Armed Forces used the law-of-
war military commission was during World War II. In Quirin, this Court sanctioned President
Roosevelt’s use of such a tribunal to try Nazi saboteurs captured on American soil during the War. 

    Quirin is the model the Government invokes most frequently to defend the commission
convened to try Hamdan. That is both appropriate and unsurprising. Since Guantanamo Bay is
neither enemy-occupied territory nor under martial law, the law-of-war commission is the only
model available. At the same time, no more robust model of executive power
exists; Quirin represents the high-water mark of military power to try enemy combatants for war
crimes...

    The classic treatise penned by Colonel William Winthrop describes at least four preconditions
for exercise of jurisdiction by a tribunal of the type convened to try Hamdan. First, “[a] military
commission, (except where otherwise authorized by statute), can legally assume jurisdiction only of
offenses committed within the field of the command of the convening commander.” The “field of
command” in these circumstances means the “theatre of war.” Second, the offense charged “must
have been committed within the period of the war.” No jurisdiction exists to try offenses
“committed either before or after the war.” Third, a military commission not established pursuant to
martial law or an occupation may try only “[i]ndividuals of the enemy’s army who have been guilty
of illegitimate warfare or other offences in violation of the laws of war” and members of one’s own
army “who, in time of war, become chargeable with crimes or offences not cognizable, or triable,
by the criminal courts or under the Articles of war.” Finally, a law-of-war commission has
jurisdiction to try only two kinds of offense: “Violations of the laws and usages of war cognizable
by military tribunals only,” and “[b]reaches of military orders or regulations for which offenders
are not legally triable by court-martial under the Articles of war.”

    All parties agree that Colonel Winthrop’s treatise accurately describes the common law
governing military commissions, and that the jurisdictional limitations he identifies were
incorporated in Article of War 15 and, later, Article 21 of the UCMJ. It also is undisputed that
Hamdan’s commission lacks jurisdiction to try him unless the charge “properly set[s] forth, not
only the details of the act charged, but the circumstances conferringjurisdiction.” The question is
whether the preconditions designed to ensure that a military necessity exists to justify the use of
this extraordinary tribunal have been satisfied here.

    The charge against Hamdan, described in detail in Part I, alleges a conspiracy extending over a
number of years, from 1996 to November 2001. All but two months of that more than 5-year-long
period preceded the attacks of September 11, 2001, and the enactment of the AUMF—the Act of
Congress on which the Government relies for exercise of its war powers and thus for its authority
to convene military commissions. Neither the purported agreement with Osama bin Laden and
others to commit war crimes, nor a single overt act, is alleged to have occurred in a theater of war
or on any specified date after September 11, 2001. None of the overt acts that Hamdan is alleged to
have committed violates the law of war.

    These facts alone cast doubt on the legality of the charge and, hence, the commission; the offense
alleged must have been committed both in a theater of war and during, not before, the relevant
conflict. But the deficiencies in the time and place allegations also underscore—indeed are
symptomatic of—the most serious defect of this charge: The offense it alleges is not triable by law-
of-war military commission.

    There is no suggestion that Congress has, in exercise of its constitutional authority to “define and
punish . . . Offences against the Law of Nations,” U. S. Const., Art. I, §8, cl. 10, positively
identified “conspiracy” as a war crime. As we explained in Quirin, that is not necessarily fatal to
the Government’s claim of authority to try the alleged offense by military commission; Congress,
through Article 21 of the UCMJ, has “incorporated by reference” the common law of war, which
may render triable by military commission certain offenses not defined by statute. When, however,
neither the elements of the offense nor the range of permissible punishments is defined by statute or
treaty, the precedent must be plain and unambiguous. To demand any less would be to risk
concentrating in military hands a degree of adjudicative and punitive power in excess of that
contemplated either by statute or by the Constitution.

    This high standard was met in Quirin; the violation there alleged was, by “universal agreement
and practice” both in this country and internationally, recognized as an offense against the law of
war.... 

    At a minimum, the Government must make a substantial showing that the crime for which it
seeks to try a defendant by military commission is acknowledged to be an offense against the law
of war. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been
tried as such in this country by any law-of-war military commission not exercising some other form
of jurisdiction, and does not appear in either the Geneva Conventions or the Hague Conventions—
the major treaties on the law of war.... 

     Finally, international sources confirm that the crime charged here is not a recognized violation
of the law of war.  As observed above, none of the major treaties governing the law of war
identifies conspiracy as a violation thereof. And the only “conspiracy” crimes that have been
recognized by international war crimes tribunals (whose jurisdiction often extends beyond war
crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit
genocide and common plan to wage aggressive war, which is a crime against the peace and requires
for its commission actual participation in a “concrete plan to wage war.” 

    In sum, the sources that the Government and Justice Thomas rely upon to show that conspiracy
to violate the law of war is itself a violation of the law of war in fact demonstrate quite the
opposite. Far from making the requisite substantial showing, the Government has failed even to
offer a “merely colorable” case for inclusion of conspiracy among those offenses cognizable by
law-of-war military commission. Because the charge does not support the commission’s
jurisdiction, the commission lacks authority to try Hamdan....

    The charge’s shortcomings are not merely formal, but are indicative of a broader inability on the
Executive’s part here to satisfy the most basic precondition—at least in the absence of specific
congressional authorization—for establishment of military commissions: military necessity.
Hamdan’s tribunal was appointed not by a military commander in the field of battle, but by a
retired major general stationed away from any active hostilities.  Hamdan is charged not with an
overt act for which he was caught redhanded in a theater of war and which military efficiency
demands be tried expeditiously, but with an agreement the inception of which long predated the
attacks of September 11, 2001 and the AUMF. That may well be a crime, but it is not an offense
that “by the law of war may be tried by military commissio[n].” 

VI
    Whether or not the Government has charged Hamdan with an offense against the law of war
cognizable by military commission, the commission lacks power to proceed. The UCMJ conditions
the President’s use of military commissions on compliance not only with the American common
law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with the “rules and
precepts of the law of nations” —including, inter alia, the four Geneva Conventions signed in
1949. The procedures that the Government has decreed will govern Hamdan’s trial by commission
violate these laws....

VII

    We have assumed, as we must, that the allegations made in the Government’s charge against
Hamdan are true. We have assumed, moreover, the truth of the message implicit in that charge—
viz., that Hamdan is a dangerous individual whose beliefs, if acted upon, would cause great harm
and even death to innocent civilians, and who would act upon those beliefs if given the opportunity.
It bears emphasizing that Hamdan does not challenge, and we do not today address, the
Government’s power to detain him for the duration of active hostilities in order to prevent such
harm. But in undertaking to try Hamdan and subject him to criminal punishment, the Executive is
bound to comply with the Rule of Law that prevails in this jurisdiction.

HAMDAN v. RUMSFELD

Facts of the Case 

Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghani forces and imprisoned by the U.S.
military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his
detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated
him an enemy combatant.

A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to
determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military
commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the
Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been
authorized by Congress and was therefore not unconstitutional.

Question 
May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was
the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by
the Congress or the inherent powers of the President?

Conclusion 

Legal provision: Uniform Code of Military Justice

Yes and no. The Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of
Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military
commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws
of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore
be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from
certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore
illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts, who participated in the case while
serving on the DC Circuit Court of Appeals, did not take part in the decision.

U.S. Supreme Court

In re Yamashita, 327 U.S. 1 (1946)

In re Yamashita

No. 61, Misc.

Argued January 7, 8, 1946

Decided February 4, 1946*

327 U.S. 1

APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF

HABEAS CORPUS AND WRIT OF PROHIBITION

Syllabus

Prior to September 3, 1945, petitioner was the Commanding General of the Fourteenth Army Group of the Imperial
Japanese Army in the Philippine Islands. On that day, he surrendered to the United States Army and became a
prisoner of war. Respondent was the Commanding General of the United States Army Forces, Western Pacific, whose
command embraced the Philippine Islands. Respondent appointed a military commission to try the petitioner on a
charge of violation of the law of war. The gist of the charge was that petitioner had failed in his duty as an army
commander to control the operations of his troops, "permitting them to commit" specified atrocities against the
civilian population and prisoners of war. Petitioner was found guilty, and sentenced to death.

Held:

1. The military commission appointed to try the petitioner was lawfully created. P. 327 U. S. 9.

(a) Nature of the authority to create military commissions for the trial of enemy combatants for offenses against the
law of war, and principles governing the exercise of jurisdiction by such commissions, considered. Citing Ex parte
Quirin, 317 U. S. 1, and other cases. Pp. 327 U. S. 7-9.

(b) A military commission may be appointed by any field commander, or by any commander competent to appoint a
general court-martial, as was respondent by order of the President. P. 327 U. S. 10.

(c) The order creating the military commission was in conformity with the Act of Congress (10 U.S.C. §§ 1471-1593)
sanctioning chanroblesvirtualawlibrary

Page 327 U. S. 2
the creation of such tribunals for the trial of offenses against the law of war committed by enemy combatants. P. 327
U. S. 11.

2. Trial of the petitioner by the military commission was lawful, although hostilities had ceased. P. 327 U. S. 12.

(a) A violation of the law of war, committed before the cessation of hostilities, may lawfully be tried by a military
commission after hostilities have ceased -- at least until peace has been officially recognized by treaty or proclamation
by the political branch of the Government. P. 327 U. S. 12.

(b) Trial of the petitioner by the military commission was authorized by the political branch of the Government, by
military command, by international law and usage, and by the terms of the surrender of the Japanese government.
P. 327 U. S. 13.

3. The charge preferred against the petitioner was of a violation of the law of war. P. 327 U. S. 13.

(a) The law of war imposes on an army commander a duty to take such appropriate measures as are within his power
to control the troops under his command for the prevention of acts which are violations of the law of war and which
are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with
personal responsibility for his failure to take such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.

(b) What measures, if any, petitioner took to prevent the alleged violations of the law of war, and whether such
measures as he may have taken were appropriate and sufficient to discharge the duty imposed upon him, were
questions within the peculiar competence of the military officers composing the commission, and were for it to decide.
P. 327 U. S. 16.

(c) Charges of violations of the law of war triable before a military tribunal need not be stated with the precision of a
common law indictment. P. 327 U. S. 17.

(d) The allegations of the charge here, tested by any reasonable standard, sufficiently set forth a violation of the law
of war, and the military commission had authority to try and to decide the issue which it raised. P. 327 U. S. 17.

4. In admitting on behalf of the prosecution a deposition and hearsay and opinion evidence, the military commission
did not violate any Act of Congress, treaty, or military command defining the commission's authority. Pp. 327 U. S.
18,327 U. S. 23.

(a) The Articles of War, including Articles 25 and 38, are not applicable to the trial of an enemy combatant by a
military commission  chanroblesvirtualawlibrary

Page 327 U. S. 3

for violations of the law of war, and imposed no restrictions upon the procedure to be followed in such trial. Pp. 327 U.
S. 19-20.

(b) Article 63 of the Geneva Convention of 1929, which provides that

"Sentence may be pronounced against a prisoner of war only by the same courts and according to the same
procedure as in the case of persons belonging to the armed forces of the detaining Power,"

does not require that Articles 25 and 38 of the Articles of War be applied in the trial of the petitioner. Article 63 refers
to sentence "pronounced against a prisoner of war" for an offense committed while a prisoner of war, and not for a
violation of the law of war committed while a combatant. P. 327 U. S. 20.

(c) The Court expresses no opinion on the question of the wisdom of considering such evidence as was received in this
proceeding, nor on the question whether the action of a military tribunal in admitting evidence which Congress or
controlling military command has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition. P. 327 U. S. 23.

5. On an application for habeas corpus, the Court is not concerned with the guilt or innocence of the petitioner. P.327
U. S. 8.
6. By sanctioning trials of enemy aliens by military commission for offenses against the law of war, Congress
recognized the right of the accused to make a defense, and did not foreclose their right to contend that the
Constitution or laws of the United States withhold authority to proceed with the trial. P. 327 U. S. 9.

7. The Court does not appraise the evidence on which the petitioner here was convicted. P. 327 U. S. 17.

8. The military commission's rulings on evidence and on the mode of conducting the proceedings against the
petitioner are not reviewable by the courts, but only by the reviewing military authorities. From this viewpoint, it is
unnecessary to consider what, in other situations, the Fifth Amendment might require. Pp. 327 U. S. 8, 327 U. S. 23.

9. Article 60 of the Geneva Convention of 1929, which provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall advise the
representative of the protecting Power thereof as soon as possible, and always before the date set for the opening of
the trial,"

applies only to persons who are subjected to judicial proceedings for offenses committed while prisoners of war. P.327
U. S. 23.

10. The detention of the petitioner for trial, and his detention upon his conviction, subject to the prescribed review by
the military authorities, were lawful. P. 327 U. S. 25.

Leave and petition denied.  chanroblesvirtualawlibrary

Page 328 U. S. 4

No. 61, Misc. Application for leave to file a petition for writs of habeas corpus and prohibition in this Court challenging
the jurisdiction and legal authority of a military commission which convicted applicant of a violation of the law of war
and sentenced him to be hanged. Denied.

No. 672. Petition for certiorari to review an order of the Supreme Court of the Commonwealth of the Philippines, 42
Off.Gaz. 664, denying an application for writs of habeas corpus and prohibition likewise challenging the jurisdiction
and legal authority of the military commission which tried and convicted petitioner. Denied.

MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

No. 61 Miscellaneous is an application for leave to file a petition for writs of habeas corpus and prohibition in this
Court. No. 672 is a petition for certiorari to review an order of the Supreme Court of the the Philippines (28 U.S.C. §
349) denying petitioner's application to that court for writs of habeas corpus and prohibition. As both applications
raise substantially like questions, and because of the importance and novelty of some of those presented, we set the
two applications down for oral argument as one case.  chanroblesvirtualawlibrary

Page 327 U. S. 5

From the petitions and supporting papers, it appears that, prior to September 3, 1945, petitioner was the
Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands. On that
date, he surrendered to and became a prisoner of war of the United States Army Forces in Baguio, Philippine Islands.
On September 25th, by order of respondent, Lieutenant General Wilhelm D. Styer, Commanding General of the United
States Army Forces, Western Pacific, which command embraces the Philippine Islands, petitioner was served with a
charge prepared by the Judge Advocate General's Department of the Army, purporting to charge petitioner with a
violation of the law of war. On October 8, 1945, petitioner, after pleading not guilty to the charge, was held for trial
before a military commission of five Army officers appointed by order of General Styer. The order appointed six Army
officers, all lawyers, as defense counsel. Throughout the proceedings which followed, including those before this
Court, defense counsel have demonstrated their professional skill and resourcefulness and their proper zeal for the
defense with which they were charged.

On the same date, a bill of particulars was filed by the prosecution, and the commission heard a motion made in
petitioner's behalf to dismiss the charge on the ground that it failed to state a violation of the law of war. On October
29th, the commission was reconvened, a supplemental bill of particulars was filed, and the motion to dismiss was
denied. The trial then proceeded until its conclusion on December 7, 1945, the commission hearing two hundred and
eighty-six witnesses, who gave over three thousand pages of testimony. On that date, petitioner was found guilty of
the offense as charged, and sentenced to death by hanging.

The petitions for habeas corpus set up that the detention of petitioner for the purpose of the trial was unlawful for chanroblesvirtualawlibrary

Page 327 U. S. 6

reasons which are now urged as showing that the military commission was without lawful authority or jurisdiction to
place petitioner on trial, as follows:

(a) That the military commission which tried and convicted petitioner was not lawfully created, and that no military
commission to try petitioner for violations of the law of war could lawfully be convened after the cessation of hostilities
between the armed forces of the United States and Japan;

(b) that the charge preferred against petitioner fails to charge him with a violation of the law of war;

(c) that the commission was without authority and jurisdiction to try and convict petitioner, because the order
governing the procedure of the commission permitted the admission in evidence of depositions, affidavits, and
hearsay and opinion evidence, and because the commission's rulings admitting such evidence were in violation of the
25th and 38th Articles of War (10 U.S.C. §§ 1496, 1509) and the Geneva Convention (47 Stat. 2021), and deprived
petitioner of a fair trial in violation of the due process clause of the Fifth Amendment;

(d) that the commission was without authority and jurisdiction in the premises because of the failure to give advance
notice of petitioner's trial to the neutral power representing the interests of Japan as a belligerent as required by
Article 60 of the Geneva Convention, 47 Stat. 2021, 2051.

On the same grounds, the petitions for writs of prohibition set up that the commission is without authority to proceed
with the trial.

The Supreme Court of the Philippine Islands, after hearing argument, denied the petition for habeas corpus presented
to it on the ground, among others, that its jurisdiction was limited to an inquiry as to the jurisdiction of the
commission to place petitioner on trial for the offense charged, and that the commission, being validly constituted chanroblesvirtualawlibrary

Page 327 U. S. 7

by the order of General Styer, had jurisdiction over the person of petitioner and over the trial for the offense charged.

In Ex parte Quirin, 317 U. S. 1, we had occasion to consider at length the sources and nature of the authority to
create military commissions for the trial of enemy combatants for offenses against the law of war. We there pointed
out that Congress, in the exercise of the power conferred upon it by Article I, § 8, Cl. 10, of the Constitution to "define
and punish . . . Offenses against the Law of Nations . . . " of which the law of war is a part, had, by the Articles of War
(10 U.S.C. §§ 1471-1593), recognized the "military commission" appointed by military command, as it had previously
existed in United States Army practice, as an appropriate tribunal for the trial and punishment of offenses against the
law of war. Article 15 declares that

"the provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military
commissions . . . or other military tribunals of concurrent jurisdiction in respect of offenders of offenses that, by
statute or by the law of war, may be triable by such military commissions . . . or other military tribunals."

See a similar provision of the Espionage Act of 1917, 50 U.S.C. § 38. Article 2 includes among those persons subject
to the Articles of War the personnel of our own military establishment. But this, as Article 12 indicates, does not
exclude from the class of persons subject to trial by military commissions "any other person who, by the law of war, is
subject to trial by military tribunals" and who, under Article 12, may be tried by court martial, or, under Article 15, by
military commission.

We further pointed out that Congress, by sanctioning trial of enemy combatants for violations of the law of war by
military commission, had not attempted to codify the law of war or to mark its precise boundaries. Instead, by Article
15, it had incorporated, by reference, as within the chanroblesvirtualawlibrary
Page 327 U. S. 8

preexisting jurisdiction of military commissions created by appropriate military command, all offenses which are
defined as such by the law of war and which may constitutionally be included within that jurisdiction. It thus adopted
the system of military common law applied by military tribunals so far as it should be recognized and deemed
applicable by the courts, and as further defined and supplemented by the Hague Convention, to which the United
States and the Axis powers were parties.

We also emphasized in Ex parte Quirin, as we do here, that, on application for habeas corpus, we are not concerned
with the guilt or innocence of the petitioners. We consider here only the lawful power of the commission to try the
petitioner for the offense charged. In the present cases, it must be recognized throughout that the military tribunals
which Congress has sanctioned by the Articles of War are not courts whose rulings and judgments are made subject
to review by this Court. See 68 U. S. 39. They are tribunals whose determinations are reviewable by the military
authorities either as provided in the military orders constituting such tribunals or as provided by the Articles of War.
Congress conferred on the courts no power to review their determinations save only as it has granted judicial power
"to grant writs of habeas corpus for the purpose of an inquiry into the cause of the restraint of liberty." 28 U.S.C. §§
451, 452. The courts may inquire whether the detention complained of is within the authority of those detaining the
petitioner. If the military tribunals have lawful authority to hear, decide, and condemn, their action is not subject to
judicial review merely because they have made a wrong decision on disputed facts. Correction of their errors of
decision is not for the courts, but for the military authorities, which are alone authorized to review their
decisions. See 61 U. S. 81; 122 U. S. 555-556; Carter v. McClaughry, 183 U. S. 365; Collins v. McDonald, 258 U. S.
416. Cf. Matter of Moran,@ 203 U. S. 96,203 U. S. 105.

Finally, we held in Ex parte Quirin, supra, 317 U. S. 24-25, as we hold now, that Congress, by sanctioning trials of
enemy aliens by military commission for offenses against the law of war, had recognized the right of the accused to
make a defense. Cf. Ex parte Kawato, 317 U. S. 69. It has not foreclosed their right to contend that the Constitution
or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive
branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and
power to make such inquiry into the authority of the commission as may be made by habeas corpus.

With these governing principles in mind, we turn to the consideration of the several contentions urged to establish
want of authority in the commission. We are not here concerned with the power of military commissions to try
civilians. See 71 U. S. 132; Sterling v. Constantin, 287 U. S. 378; Ex parte Quirin, supra,@ 317 U. S. 45. The
Government's contention is that General Styer's order creating the commission conferred authority on it only to try
the purported charge of violation of the law of war committed by petitioner, an enemy belligerent, while in command
of a hostile army occupying United States territory during time of war. Our first inquiry must therefore be whether the
present commission was created by lawful military command, and, if so, whether authority could thus be conferred on
the commission to place petitioner on trial after the cessation of hostilities between the armed forces of the United
States and Japan.

The authority to create the Commission. General Styer's order for the appointment of the commission was made by
him as Commander of the United States Armed Forces, Western Pacific. His command includes, as part  chanroblesvirtualawlibrary

Page 327 U. S. 10

of a vastly greater area, the Philippine Islands, where the alleged offenses were committed, where petitioner
surrender as a prisoner of war, and where, at the time of the order convening the commission, he was detained as a
prisoner in custody of the United States Army. The Congressional recognition of military commissions and its sanction
of their use in trying offenses against the law of war to which we have referred sanctioned their creation by military
command in conformity to long established American precedents. Such a commission may be appointed by any field
commander, or by any commander competent to appoint a general court martial, as was General Styer, who had been
vested with that power by order of the President. 2 Winthrop, Military Law and Precedents,2d Ed., *1302; cf.Article of
War 8.

Here, the commission was not only created by a commander competent to appoint it, but his order conformed to the
established policy of the Government and to higher military commands authorizing his action. In a proclamation of
July 2, 1942 (56 Stat. 1964), the President proclaimed that enemy belligerents who, during time of war, enter the
United States, or any territory possession thereof, and who violate the law of war, should be subject to the law of war
and to the jurisdiction of military tribunals. Paragraph 10 of the Declaration of Potsdam of July 6, 1945, declared that
" . . . stern justice shall be meted out to all war criminals, including those who have visited cruelties upon prisoners."
U.S. Dept. of State Bull., Vol. XIII, No. 318, pp. 137, 138. This Declaration was accepted by the Japanese government
by its note of August 10, 1945. U.S. Dept. of State Bull., Vol. XIII, No. 320, p. 205.
By direction of the President, the Joint Chiefs of Staff of the American Military Forces, on September 12, 1945,
instructed General MacArthur, Commander in Chief, United States Army Forces, Pacific, to proceed with the trial,
before chanroblesvirtualawlibrary

Page 327 U. S. 11

appropriate military tribunals, of such Japanese war criminals "as have been or may be apprehended." By order of
General MacArthur of September 24, 1945, General Styer was specifically directed to proceed with the trial of
petitioner upon the charge here involved. This order was accompanied by detailed rules and regulations which General
MacArthur prescribed for the trial of war criminals. These regulations directed, among other things, that review of the
sentence imposed by the commission should be by the officer convening it, with "authority to approve, mitigate,
remit, commute, suspend, reduce, or otherwise alter the sentence imposed," and directed that no sentence of death
should be carried into effect until confirmed by the Commander in Chief, United States Army Forces, Pacific.

It thus appears that the order creating the commission for the trial of petitioner was authorized by military command,
and was in complete conformity to the Act of Congress sanctioning the creation of such tribunals for the trial of
offenses against the law of war committed by enemy combatants. And we turn to the question whether the authority
to create the commission and direct the trial by military order continued after the cessation of hostilities.

An important incident to the conduct of war is the adoption of measures by the military commander not only to repel
and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to
thwart or impede our military effort, have violated the law of war. Ex parte Quirin, supra, 317 U. S. 28. The trial and
punishment of enemy combatants who have committed violations of the law of war is thus not only a part of the
conduct of war operating as a preventive measure against such violations, but is an exercise of the authority
sanctioned by Congress to administer the system of military justice recognized by the law of war. That sanction is
without qualification as to the exercise of this authority so 
chanroblesvirtualawlibrary

Page 327 U. S. 12

long as a state of war exists -- from its declaration until peace is proclaimed. See 76 U. S. 70; 79 U. S. 702; McElrath
v. United States, 102 U. S. 426, 102 U. S. 438; Kahn v. Anderson, 255 U. S. 1, 255 U. S. 9-10. The war power, from
which the commission derives its existence, is not limited to victories in the field, but carries with it the inherent
power to guard against the immediate renewal of the conflict, and to remedy, at least in ways Congress has
recognized, the evils which the military operations have produced. @See 78 U. S. 507.

We cannot say that there is no authority to convene a commission after hostilities have ended to try violations of the
law of war committed before their cessation, at least until peace has been officially recognized by treaty or
proclamation of the political branch of the Government. In fact, in most instances, the practical administration of the
system of military justice under the law of war would fail if such authority were thought to end with the cessation of
hostilities. For only after their cessation could the greater number of offenders and the principal ones be apprehended
and subjected to trial.

No writer on international law appears to have regarded the power of military tribunals, otherwise competent to try
violations of the law of war, as terminating before the formal state of war has ended. [Footnote 1] In our own military
history,  chanroblesvirtualawlibrary

Page 327 U. S. 13

there have been numerous instances in which offenders were tried by military commission after the cessation of
hostilities and before the proclamation of peace, for offenses against the law of war committed before the cessation of
hostilities. [Footnote 2]

The extent to which the power to prosecute violations of the law of war shall be exercised before peace is declared
rests not with the courts, but with the political branch of the Government, and may itself be governed by the terms of
an armistice or the treaty of peace. Here, peace has not been agreed upon or proclaimed. Japan, by her acceptance of
the Potsdam Declaration and her surrender, has acquiesced in the trials of those guilty of violations of the law of war.
The conduct of the trial by the military commission has been authorized by the political branch of the Government, by
military command, by international law and usage, and by the terms of the surrender of the Japanese government.
The Charge. Neither Congressional action nor the military orders constituting the commission authorized it to place
petitioner on trial unless the charge preferred against him is of a violation of the law of war. The charge, so far as now
relevant, is that petitioner, between October 9, 1944, and September 2, 1945, in the Philippine Islands,

"while commander of armed forces of Japan at war with the United States of America and its allies, unlawfully
disregarded and failed to discharge his duty as commander to

Page 327 U. S. 14

control the operations of the members of his command, permitting them to commit brutal atrocities and other high
crimes against people of the United States and of its allies and dependencies, particularly the Philippines, and he . . .
thereby violated the laws of war."

Bills of particulars, filed by the prosecution by order of the commission, allege a a series of acts, one hundred and
twenty-three in number, committed by members of the forces under petitioner's command during the period
mentioned. The first item specifies the execution of a

"a deliberate plan and purpose to massacre and exterminate a large part of the civilian population of Batangas
Province, and to devastate and destroy public, private, and religious property therein, as a result of which more than
25,000 men, women and children, all unarmed noncombatant civilians, were brutally mistreated and killed, without
cause or trial, and entire settlements were devastated and destroyed wantonly and without military necessity."

Other items specify acts of violence, cruelty, and homicide inflicted upon the civilian population and prisoners of war,
acts of wholesale pillage, and the wanton destruction of religious monuments.

It is not denied that such acts directed against the civilian population of an occupied country and against prisoners of
war are recognized in international law as violations of the law of war. Articles 4, 28, 46, and 47, Annex to Fourth
Hague Convention, 1907, 36 Stat. 2277, 2296, 2303, 2306, 2307. But it is urged that the charge does not allege that
petitioner has either committed or directed the commission of such acts, and consequently that no violation is charged
as against him. But this overlooks the fact that the gist of the charge is an unlawful breach of duty by petitioner as an
army commander to control the operations of the members of his command by "permitting them to commit" the
extensive and widespread atrocities specified. The question, then, is whether the law of war imposes chanroblesvirtualawlibrary

Page 327 U. S. 15

on an army commander a duty to take such appropriate measures as are within his power to control the troops under
his command for the prevention of the specified acts which are violations of the law of war and which are likely to
attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal
responsibility for his failure to take such measures when violations result. That this was the precise issue to be tried
was made clear by the statement of the prosecution at the opening of the trial.

It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts
of their commander would almost certainly result in violations which it is the purpose of the law of war to prevent. Its
purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commander
of an invading army could, with impunity, neglect to take reasonable measures for their protection. Hence, the law of
war presupposes that its violation is to be avoided through the control of the operations of war by commanders who
are to some extent responsible for their subordinates.

This is recognized by the Annex to Fourth Hague Convention of 1907, respecting the laws and customs of war on land.
Article I lays down, as a condition which an armed force must fulfill in order to be accorded the rights of lawful
belligerents, that it must be "commanded by a person responsible for his subordinates." 36 Stat. 2295. Similarly,
Article 19 of the Tenth Hague Convention, relating to bombardment by naval vessels, provides that commanders in
chief of the belligerent vessels "must see that the above Articles are properly carried out." 36 Stat. 2389. And Article
26 of the Geneva Red Cross Convention of 1929, 47 Stat. 2074, 2092, for the amelioration of the condition of the
wounded and sick in armies in the field, makes it

"the duty of the commanders in chief of the belligerent

Page 327 U. S. 16
armies to provide for the details of execution of the foregoing articles [of the convention], as well as for unforeseen
cases."

And, finally, Article 43 of the Annex of the Fourth Hague Convention, 36 Stat. 2306, requires that the commander of a
force occupying enemy territory, as was petitioner,

"shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country."

These provisions plainly imposed on petitioner, who at the time specified was military governor of the Philippines as
well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and
appropriate in the circumstances to protect prisoners of war and the civilian population. This duty of a commanding
officer has heretofore been recognized, and its breach penalized by our own military tribunals. [Footnote 3] A like
principle has been applied so as to impose liability on the United States in international arbitrations. Case of Jenaud,3
Moore, International Arbitrations 3000; Case of "The Zafiro," 5 Hackworth, Digest of International Law 707.

We do not make the laws of war, but we respect them so far as they do not conflict with the commands of Congress
or the Constitution. There is no contention that the present charge, thus read, is without the support of evidence, or
that the commission held petitioner responsible for failing to take measures which were beyond his control or
inappropriate for a commanding officer to take in the circumstances. [Footnote 4]  chanroblesvirtualawlibrary

Page 327 U. S. 17

We do not here appraise the evidence on which petitioner was convicted. We do not consider what measures, if any,
petitioner took to prevent the commission, by the troops under his command, of the plain violations of the law of war
detailed in the bill of particulars, or whether such measures as he may have taken were appropriate and sufficient to
discharge the duty imposed upon him. These are questions within the peculiar competence of the military officers
composing the commission, and were for it to decide. See Smith v. Whitney, 116 U. S. 167, 116 U. S. 178. It is plain
that the charge on which petitioner was tried charged him with a breach of his duty to control the operations of the
members of his command, by permitting them to commit the specified atrocities. This was enough to require the
commission to hear evidence tending to establish the culpable failure of petitioner to perform the duty imposed on
him by the law of war, and to pass upon its sufficiency to establish guilt.

Obviously, charges of violations of the law of war triable before a military tribunal need not be stated with the
precision of a common law indictment. Cf. Collins v. McDonald, supra, 258 U. S. 420. But we conclude that the
allegations of the charge, tested by any reasonable standard, adequately allege a violation of the law of war, and that
the chanroblesvirtualawlibrary

Page 327 U. S. 18

commission had authority to try and decide the issue which it raised. Cf. Dealy v. United States, 152 U. S.
539;Williamson v. United States, 207 U. S. 425, 207 U. S. 447; Glasser v. United States, 315 U. S. 60, 315 U. S. 66,
and cases cited.

The Proceedings before the Commission. The regulations prescribed by General MacArthur governing the procedure
for the trial of petitioner by the commission directed that the commission should admit such evidence

"as, in its opinion, would be of assistance in proving or disproving the charge, or such as, in the commission's opinion,
would have probative value in the mind of a reasonable man,"

and that, in particular, it might admit affidavits, depositions, or other statements taken by officers detailed for that
purpose by military authority. The petitions in this case charged that, in the course of the trial, the commission
received, over objection by petitioner's counsel, the deposition of a witness taken pursuant to military authority by a
United States Army captain. It also, over like objection, admitted hearsay and opinion evidence tendered by the
prosecution. Petitioner argues, as ground for the writ of habeas corpus, that Article 25 [Footnote 5] of the Articles of
War prohibited the reception in evidence by the commission of depositions on behalf of the prosecution in a capital
case, and that Article 38 [Footnote 6] prohibited the reception of hearsay and of opinion evidence.  chanroblesvirtualawlibrary

Page 327 U. S. 19
We think that neither Article 25 nor Article 38 is applicable to the trial of an enemy combatant by a military
commission for violations of the law of war. Article 2 of the Articles of War enumerates "the persons . . . subject to
these articles," who are denominated, for purposes of the Articles, as "persons subject to military law." In general, the
persons so enumerated are members of our own Army and of the personnel accompanying the Army. Enemy
combatants are not included among them. Articles 12, 13, and 14, before the adoption of Article 15 in 1916, 39 Stat.
653, made all "persons subject to military law" amenable to trial by courts-martial for any offense made punishable by
the Articles of War. Article 12 makes triable by general court martial "any other person who, by the law of war, is
[triable] by military tribunals." Since Article 2, in its 1916 form, 39 Stat. 651, includes some persons who, by the law
of war, were, prior to 1916, triable by military commission, it was feared by the proponents of the 1916 legislation
that, in the absence of a saving provision, the authority given by Articles 12, 13, and 14 to try such persons before
courts-martial might be construed to deprive the nonstatutory military commission of a portion of what was
considered to be its traditional jurisdiction. To avoid this, and to preserve that jurisdiction intact, Article 15 was added
to the Articles. [Footnote 7] It declared that

"The provisions of these articles

Page 327 U. S. 20

conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions . . . of concurrent
jurisdiction in respect of offenders or offenses that, by the law of war, may be lawfully triable by such military
commissions."

By thus recognizing military commissions in order to preserve their traditional jurisdiction over enemy combatants
unimpaired by the Articles, Congress gave sanction, as we held in Ex parte Quirin, to any use of the military
commission contemplated by the common law of war. But it did not thereby make subject to the Articles of War
persons other than those defined by Article 2 as being subject to the Articles, nor did it confer the benefits of the
Articles upon such persons. The Articles recognized but one kind of military commission, not two. But they sanctioned
the use of that one for the trial of two classes of persons, to one of which the Articles do, and to the other of which
they do not, apply in such trials. Being of this latter class, petitioner cannot claim the benefits of the Articles, which
are applicable only to the members of the other class. Petitioner, an enemy combatant, is therefore not a person
made subject to the Articles of War by Article 2, and the military commission before which he was tried, though
sanctioned, and its jurisdiction saved, by Article 15, was not convened by virtue of the Articles of War, but pursuant to
the common law of war. It follows that the Articles of War, including Articles 25 and 38, were not applicable to
petitioner's trial, and imposed no restrictions upon the procedure to be followed. The Articles left the control over the
procedure in such a case where it had previously been -- with the military command.

Petitioner further urges that, by virtue of Article 63 of the Geneva Convention of 1929, 47 Stat. 2052, he is entitled to
the benefits afforded by the 25th and 38th Articles of War to members of our own forces. Article 63 provides:

"Sentence may be pronounced against a prisoner of war

Page 327 U. S. 21

only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces
of the detaining Power."

Since petitioner is a prisoner of war, and as the 25th and 38th Articles of War apply to the trial of any person in our
own armed forces, it is said that Article 63 requires them to be applied in the trial of petitioner. But we think
examination of Article 63 in its setting in the Convention plainly shows that it refers to sentence "pronounced against
a prisoner of war" for an offense committed while a prisoner of war, and not for a violation of the law of war
committed while a combatant.

Article 63 of the Convention appears in part 3, entitled "Judicial Suits," of Chapter 3, "Penalties Applicable to Prisoners
of War," of § V, "Prisoners' Relations with the Authorities," one of the sections of Title III, "Captivity." All taken
together relate only to the conduct and control of prisoners of war while in captivity as such. Chapter 1 of Section V,
Article 42, deals with complaints of prisoners of war because of the conditions of captivity. Chapter 2, Articles 43 and
44, relates to those of their number chosen by prisoners of war to represent them.

Chapter 3 of Section V, Articles 45 through 67, is entitled "Penalties Applicable to Prisoners of War." Part 1 of that
chapter, Articles 45 through 53, indicates what acts of prisoners of war committed while prisoners shall be considered
offenses, and defines to some extent the punishment which the detaining power may impose on account of such
offenses. [Footnote 8] Punishment is of two kinds -- "disciplinary" and  chanroblesvirtualawlibrary

Page 327 U. S. 22

"judicial," the latter being the more severe. Article 52 requires that leniency be exercised in deciding whether an
offense requires disciplinary or judicial punishment. Part 2 of Chapter 3 is entitled "Disciplinary Punishments," and
further defines the extent of such punishment and the mode in which it may be imposed. Part 3, entitled "Judicial
Suits," in which Article 63 is found, describes the procedure by which "judicial" punishment may be imposed. The
three parts of Chapter 3, taken together, are thus a comprehensive description of the substantive offenses which
prisoners of war may commit during their imprisonment, of the penalties which may be imposed on account of such
offenses, and of the procedure by which guilt may be adjudged and sentence pronounced.

We think it clear, from the context of these recited provisions, that part 3, and Article 63 which it contains, apply only
to judicial proceedings directed against a prisoner of war for offenses committed while a prisoner of war. Section chanroblesvirtualawlibrary

Page 327 U. S. 23

V gives no indication that this part was designed to deal with offenses other than those referred to in parts 1 and 2 of
chapter 3.

We cannot say that the commission, in admitting evidence to which objection is now made, violated any act of
Congress, treaty, or military command defining the commission's authority. For reasons already stated, we hold that
the commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not
reviewable by the courts, but only by the reviewing military authorities. From this viewpoint, it is unnecessary to
consider what, in other situations, the Fifth Amendment might require, and as to that, no intimation one way or the
other is to be implied. Nothing we have said is to be taken as indicating any opinion on the question of the wisdom of
considering such evidence, or whether the action of a military tribunal in admitting evidence which Congress or
controlling military command has directed to be excluded may be drawn in question by petition for habeas corpus or
prohibition.

Effect of failure to give notice of the trial to the protecting power. Article 60 of the Geneva Convention of July 27,
1929, 47 Stat. 2051, to which the United States and Japan were signatories, provides that,

"At the opening of a judicial proceeding directed against a prisoner of war, the detaining Power shall advise the
representative of the protecting Power thereof as soon as possible, and always before the date set for the opening of
the trial."

Petitioner relies on the failure to give the prescribed notice to the protecting power [Footnote 9] to establish want of
authority in the commission to proceed with the trial.  chanroblesvirtualawlibrary

Page 327 U. S. 24

For reasons already stated, we conclude that Article 60 of the Geneva Convention, which appears in part 3, Chapter 3,
Section V, Title III of the Geneva Convention, applies only to persons who are subjected to judicial proceedings for
offenses committed while prisoners of war. [Footnote 10]  chanroblesvirtualawlibrary

Page 327 U. S. 25

It thus appears that the order convening the commission was a lawful order, that the commission was lawfully
constituted, that petitioner was charged with violation of the law of war, and that the commission had authority to
proceed with the trial, and, in doing so, did not violate any military, statutory, or constitutional command. We have
considered, but find it unnecessary to discuss, other contentions which we find to be without merit. We therefore
conclude that the detention of petitioner for trial and his detention upon his conviction, subject to the prescribed
review by the military authorities, were lawful, and that the petition for certiorari, and leave to file in this Court  chanroblesvirtualawlibrary

Page 327 U. S. 26

petitions for writs of habeas corpus and prohibition should be, and they are
Denied.

HAMDAN V. RUMSFELD 

SUPREME COURT OF THE UNITED STATES 

HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 05–184.  Argued March 28, 2006—Decided June 29, 2006

Pursuant to Congress’ Joint Resolution authorizing the President to “use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized, committed or aided” the September 11,
2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001,
militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in
2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible
for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy “to
commit … offenses triable by military commission.” In habeas and mandamus petitions, Hamdan asserted that the
military commission lacks authority to try him because (1) neither congressional Act nor the common law of war
supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war;
and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle
that a defendant must be permitted to see and hear the evidence against him..

The District Court granted habeas relief and stayed the commission’s proceedings, concluding that the President’s
authority to establish military commissions extends only to offenders or offenses triable by such a commission under
the law of war; that such law includes the Third Geneva Convention; that Hamdan is entitled to that Convention’s full
protections until adjudged, under it, not to be a prisoner of war; and that, whether or not Hamdan is properly
classified a prisoner of war, the commission convened to try him was established in violation of both the Uniform Code
of Military Justice (UCMJ), 10 U. S. C. §801 et seq., and Common Article 3 of the Third Geneva Convention because it
had the power to convict based on evidence the accused would never see or hear. The D. C. Circuit reversed.
Although it declined the Government’s invitation to abstain from considering Hamdan’s challenge,
cf.Schlesinger v. Councilman, 420 U. S. 738, the appeals court ruled, on the merits, that Hamdan was not entitled to
relief because the Geneva Conventions are not judicially enforceable. The court also concluded that Ex parte
Quirin,317 U. S. 1, foreclosed any separation-of-powers objection to the military commission’s jurisdiction, and that
Hamdan’s trial before the commission would violate neither the UCMJ nor Armed Forces regulations implementing the
Geneva Conventions.

Held: The judgment is reversed, and the case is remanded.

415 F. 3d 33, reversed and remanded.

Justice Stevens delivered the opinion of the Court, except as to Parts V and VI–D–iv, concluding:.

1. The Government’s motion to dismiss, based on the Detainee Treatment Act of 2005 (DTA), is denied. DTA §1005(e)
(1) provides that “no court … shall have jurisdiction to hear or consider … an application for … habeas corpus filed by
… an alien detained … at Guantanamo Bay.” Section 1005(h)(2) provides that §§1005(e)(2) and (3)—which give the
D. C. Circuit “exclusive” jurisdiction to review the final decisions of, respectively, combatant status review tribunals
and military commissions—“shall apply with respect to any claim whose review is … pending on” the DTA’s effective
date, as was Hamdan’s case. The Government’s argument that §§1005(e)(1) and (h) repeal this Court’s jurisdiction to
review the decision below is rebutted by ordinary principles of statutory construction. A negative inference may be
drawn from Congress’ failure to include §1005(e)(1) within the scope of §1005(h)(2). Cf., e.g., Lindh v. Murphy, 521
U. S. 320, 330. “If … Congress was reasonably concerned to ensure that [§§1005(e)(2) and (3)] be applied to
pending cases, it should have been just as concerned about [§1005(e)(1)], unless it had the different intent that the
latter [section] not be applied to the general run of pending cases.” Id., at 329. If anything, the evidence of deliberate
omission is stronger here than it was in Lindh. The legislative history shows that Congress not only considered the
respective temporal reaches of §§1005(e)(1), (2), and (3) together at every stage, but omitted paragraph (1) from its
directive only after having rejected earlier proposed versions of the statute that would have included what is now
paragraph (1) within that directive’s scope. Congress’ rejection of the very language that would have achieved the
result the Government urges weighs heavily against the Government’s interpretation. See Doe v. Chao, 540 U. S.
614, 621–623. Pp. 7–20.

2. The Government argues unpersuasively that abstention is appropriate under Councilman, which concluded that, as
a matter of comity, federal courts should normally abstain from intervening in pending courts-martial against service
members, see 420 U. S., at 740. Neither of the comity considerations Councilman identified weighs in favor of
abstention here. First, the assertion that military discipline and, therefore, the Armed Forces’ efficient operation, are
best served if the military justice system acts without regular interference from civilian courts, see id., at 752, is inapt
because Hamdan is not a service member. Second, the view that federal courts should respect the balance Congress
struck when it created “an integrated system of military courts and review procedures” is inapposite, since the
tribunal convened to try Hamdan is not part of that integrated system. Rather than Councilman, the most relevant
precedent is Ex parte Quirin, where the Court, far from abstaining pending the conclusion of ongoing military
proceedings, expedited its review because of (1) the public importance of the questions raised, (2) the Court’s duty, in
both peace and war, to preserve the constitutional safeguards of civil liberty, and (3) the public interest in a decision
on those questions without delay, 317 U. S. at 19. The Government has identified no countervailing interest that
would permit federal courts to depart from their general duty to exercise the jurisdiction Congress has conferred on
them. Pp. 20–25.

3. The military commission at issue is not expressly authorized by any congressional Act. Quirin held that Congress
had, through Article of War 15, sanctioned the use of military commissions to try offenders or offenses against the law
of war. 317 U. S., at 28. UCMJ Art. 21, which is substantially identical to the old Art. 15, reads: “The jurisdiction [of]
courts-martial shall not be construed as depriving military commissions … of concurrent jurisdiction in respect of
offenders or offenses that by statute or by the law of war may be tried by such … commissions.” 10 U. S. C. §821.
Contrary to the Government’s assertion, even Quirin did not view that authorization as a sweeping mandate for the
President to invoke military commissions whenever he deems them necessary. Rather, Quirin recognized that
Congress had simply preserved what power, under the Constitution and the common law of war, the President already
had to convene military commissions—with the express condition that he and those under his command comply with
the law of war. See 317 U. S., at 28–29. Neither the AUMF nor the DTA can be read to provide specific, overriding
authorization for the commission convened to try Hamdan. Assuming the AUMF activated the President’s war powers,
see Hamdi v. Rumsfeld, 542 U. S. 507, and that those powers include authority to convene military commissions in
appropriate circumstances, see, e.g., id., at 518, there is nothing in the AUMF’s text or legislative history even hinting
that Congress intended to expand or alter the authorization set forth in UCMJ Art. 21. Cf. Ex parte Yerger, 8 Wall. 85,
105. Likewise, the DTA cannot be read to authorize this commission. Although the DTA, unlike either Art. 21 or the
AUMF, was enacted after the President convened Hamdan’s commission, it contains no language authorizing that
tribunal or any other at Guantanamo Bay. Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general
Presidential authority to convene military commissions in circumstances where justified under the Constitution and
laws, including the law of war. Absent a more specific congressional authorization, this Court’s task is, as it was
in Quirin, to decide whether Hamdan’s military commission is so justified. Pp. 25–30.

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the
UCMJ and the four Geneva Conventions signed in 1949. Pp. 49–72..

(a) The commission’s procedures, set forth in Commission Order No. 1, provide, among other things, that an accused
and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during,
any part of the proceeding the official who appointed the commission or the presiding officer decides to “close.”
Grounds for closure include the protection of classified information, the physical safety of participants and witnesses,
the protection of intelligence and law enforcement sources, methods, or activities, and “other national security
interests.” Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding
officer’s discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the
rules governing Hamdan’s commission permit the admission of any evidence that, in the presiding officer’s opinion,
would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied
access to classified and other “protected information,” so long as the presiding officer concludes that the evidence is
“probative” and that its admission without the accused’s knowledge would not result in the denial of a full and fair
trial. Pp. 49–52..

(b) The Government objects to this Court’s consideration of a procedural challenge at this stage on the grounds,inter
alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no
basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to
law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as
matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-
court review of the commission’s “final decision” under DTA §1005(e)(3). Second, there is a basis to presume that the
procedures employed during Hamdan’s trial will violate the law: He will be, and indeed already has been, excluded
from his own trial. Thus, review of the procedures in advance of a “final decision” is appropriate. Pp. 52–53..

(c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdan’s commission trial are
illegal. The procedures governing such trials historically have been the same as those governing courts-martial.
Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial
procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected
in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military
commissions alike must be “uniform insofar as practicable,” 10 U. S. C. §836(b). The “practicability” determination
the President has made is insufficient to justify variances from the procedures governing courts-martial. The President
here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and
principles of law that govern “the trial of criminal cases in the United States district courts” to Hamdan’s commission.
The President has not, however, made a similar official determination that it is impracticable to apply the rules for
courts-martial. And even if subsection (b)’s requirements could be satisfied without an official practicability
determination, that subsection’s requirements are not satisfied here. Nothing in the record demonstrates that it would
be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing
properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not
evident why the danger posed by international terrorism, considerable though it is, should require, in the case of
Hamdan’s trial, any variance from the courts-martial rules. The absence of any showing of impracticability is
particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental
protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See
10 U. S. C. A. §839(c). Because the jettisoning of so basic a right cannot lightly be excused as “practicable,” the
courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant
respects from those rules, it necessarily violates Art. 36(b). Pp. 53–62..

(d) The procedures adopted to try Hamdan also violate the Geneva Conventions. The D. C. Circuit dismissed
Hamdan’s challenge in this regard on the grounds, inter alia, that the Conventions are not judicially enforceable and
that, in any event, Hamdan is not entitled to their protections. Neither of these grounds is persuasive. Pp. 62–68..

   (i) The appeals court relied on a statement in Johnson v. Eisentrager, 339 U. S. 763, 789, n. 14, suggesting that
this Court lacked power even to consider the merits of a Convention argument because the political and military
authorities had sole responsibility for observing and enforcing prisoners’ rights under the Convention.
However,Eisentrager does not control here because, regardless of the nature of the rights conferred on Hamdan,
cf. United States v. Rauscher, 119 U. S. 407, they are indisputably part of the law of war, see Hamdi, 542 U. S., at
520–521, compliance with which is the condition upon which UCMJ Art. 21 authority is granted. Pp. 63–65..

   (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan
was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the
war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one
provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories.
Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character
occurring in the territory of one of the High Contracting Parties [i.e., signatories], each Party to the conflict shall be
bound to apply, as a minimum,” certain provisions protecting “[p]ersons … placed hors de combat by … detention,”
including a prohibition on “the passing of sentences … without previous judgment … by a regularly constituted court
affording all the judicial guarantees … recognized as indispensable by civilized peoples.” The D. C. Circuit ruled
Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a
“conflict not of an international character. ” That reasoning is erroneous. That the quoted phrase bears its literal
meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2,
which limits its own application to any armed conflict between signatories and provides that signatories must abide by
all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory
“accepts and applies” those terms. Common Article 3, by contrast, affords some minimal protection, falling short of
full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who
are involved in a conflict “in the territory of” a signatory. The latter kind of conflict does not involve a clash between
nations (whether signatories or not). Pp. 65–68..
   (iii) While Common Article 3 does not define its “regularly constituted court” phrase, other sources define the words
to mean an “ordinary military cour[t]” that is “established and organized in accordance with the laws and procedures
already in force in a country.” The regular military courts in our system are the courts-martial established by
congressional statute. At a minimum, a military commission can be “regularly constituted” only if some practical need
explains deviations from court-martial practice. No such need has been demonstrated here. Pp. 69–70..

   (iv) Common Article 3’s requirements are general, crafted to accommodate a wide variety of legal systems, but they
are requirements nonetheless. The commission convened to try Hamdan does not meet those requirements. P. 72..

(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians
given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try
him and subject him to criminal punishment. P. 72.

Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Parts V and VI–D–iv:.

1. The Government has not charged Hamdan with an “offense … that by the law of war may be tried by military
commission,” 10 U. S. C. §821. Of the three sorts of military commissions used historically, the law-of-war type used
in Quirin and other cases is the only model available to try Hamdan. Among the preconditions, incorporated in Article
of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited
to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and
that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged
to have committed any overt act in a theater of war or on any specified date after September 11, 2001. More
importantly, the offense alleged is not triable by law-of-war military commission. Although the common law of war
may render triable by military commission certain offenses not defined by statute, Quirin, 317 U. S., at 30, the
precedent for doing so with respect to a particular offense must be plain and unambiguous, cf., e.g., Loving v. United
States, 517 U. S. 748, 771. That burden is far from satisfied here. The crime of “conspiracy” has rarely if ever been
tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction, and
does not appear in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.
Moreover, that conspiracy is not a recognized violation of the law of war is confirmed by other international sources,
including, e.g., the International Military Tribunal at Nuremberg, which pointedly refused to recognize conspiracy to
commit war crimes as such a violation. Because the conspiracy charge does not support the commission’s jurisdiction,
the commission lacks authority to try Hamdan. Pp. 30–49.

2. The phrase “all the guarantees … recognized as indispensable by civilized peoples” in Common Article 3 of the
Geneva Conventions is not defined, but it must be understood to incorporate at least the barest of the trial protections
recognized by customary international law. The procedures adopted to try Hamdan deviate from those governing
courts-martial in ways not justified by practical need, and thus fail to afford the requisite guarantees. Moreover,
various provisions of Commission Order No. 1 dispense with the principles, which are indisputably part of customary
international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be
privy to the evidence against him. Pp. 70–72.

Justice Kennedy, agreeing that Hamdan’s military commission is unauthorized under the Uniform Code of Military
Justice, 10 U. S. C. §§836 and 821, and the Geneva Conventions, concluded that there is therefore no need to decide
whether Common Article 3 of the Conventions requires that the accused have the right to be present at all stages of a
criminal trial or to address the validity of the conspiracy charge against Hamdan. Pp. 17–19.

Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I
through IV, VI through VI–D–iii, VI–D–v, and VII, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an
opinion with respect to Parts V and VI–D–iv, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a
concurring opinion, in which Kennedy, Souter, and Ginsburg, JJ., joined. Kennedy, J., filed an opinion concurring in
part, in which Souter, Ginsburg, and Breyer, JJ., joined as to Parts I and II. Scalia, J., filed a dissenting opinion, in
which Thomas and Alito, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which
Alito, J., joined as to all but Parts I, II–C–1, and III–B–2. Alito, J., filed a dissenting opinion, in which Scalia and
Thomas, JJ., joined as to Parts I through III. Roberts, C.J., took no part in the consideration or decision of the case.