Supreme Court of the Philippines what it had found to be the facts and circumstances surrounding the
case.
445 Phil. 250  Philippines in 1974. In 1976, under the regime of the Shah of Iran,
FIRST DIVISION
G.R. No. 142396, February 11, 2003
KHOSROW MINUCHER, PETITIONER, VS. HON. COURT
OF APPEALS AND ARTHUR SCALZO, RESPONDENTS.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the “Dangerous
Drugs Act of 1972,” was filed against petitioner Khosrow Minucher
and one Abbas Torabian with the Regional Trial Court, Branch 151,
of Pasig City. The criminal charge followed a “buy-bust operation”
conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic agents
were accompanied by private respondent Arthur Scalzo who would,
in due time, become one of the principal witnesses for the
prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino
rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before
the Regional Trial Court (RTC), Branch 19, of Manila for damages
on account of what he claimed to have been trumped-up charges of
drug trafficking made by Arthur Scalzo. The Manila RTC detailed
"The testimony of the plaintiff disclosed that he is an Iranian
national. He came to the Philippines to study in the University of the
he was appointed Labor Attaché for the Iranian Embassies in Tokyo,
Japan and Manila, Philippines. When the Shah of Iran was deposed
by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the
Iranian National Resistance Movement in the Philippines.
“He came to know the defendant on May 13, 1986, when the latter
was brought to his house and introduced to him by a certain Jose
Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo,
on the other hand, was met by plaintiff at the office of Atty. Crisanto
Saruca, a lawyer for several Iranians whom plaintiff assisted as head
of the anti-Khomeini movement in the Philippines.
”During his first meeting with the defendant on May 13, 1986, upon
the introduction of Jose Iñigo, the defendant expressed his interest in
buying caviar. As a matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of
Persian carpets, pistachio nuts and other Iranian products was his
business after the Khomeini government cut his pension of over
$3,000.00 per month. During their introduction in that meeting, the
defendant gave the plaintiff his calling card, which showed that he is
working at the US Embassy in the Philippines, as a special agent of
the Drug Enforcement Administration, Department of Justice, of the
United States, and gave his address as US Embassy, Manila. At the
back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.
“It was also during this first meeting that plaintiff expressed his
desire to obtain a US Visa for his wife and the wife of a countryman
named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however,
was more concentrated on politics, carpets and caviar. Thereafter, the
defendant promised to see plaintiff again.
“On May 19, 1986, the defendant called the plaintiff and invited the
latter for dinner at Mario's Restaurant at Makati. He wanted to buy
200 grams of caviar. Plaintiff brought the merchandize but for the
reason that the defendant was not yet there, he requested the
restaurant people to x x x place the same in the refrigerator.
Defendant, however, came and plaintiff gave him the caviar for
which he was paid. Then their conversation was again focused on
politics and business.
“On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted to
buy a pair of carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For the reason that
defendant did not yet have the money, they agreed that defendant
would come back the next day. The following day, at 1:00 p.m., he
came back with his $24,000.00, which he gave to the plaintiff, and
the latter, in turn, gave him the pair of carpets.
“At about 3:00 in the afternoon of May 27, 1986, the defendant came
back again to plaintiff's house and directly proceeded to the latter's
bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained
$2,000.00 from it, gave it to the defendant for the latter's fee in
obtaining a visa for plaintiff's wife. The defendant told him that he
would be leaving the Philippines very soon and requested him to
come out of the house for a while so that he can introduce him to his
cousin waiting in a cab. Without much ado, and without putting on
his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his
complete surprise, an American jumped out of the cab with a drawn
high-powered gun. He was in the company of about 30 to 40 Filipino
soldiers with 6 Americans, all armed. He was handcuffed and after
about 20 minutes in the street, he was brought inside the house by
the defendant. He was made to sit down while in handcuffs while the
defendant was inside his bedroom. The defendant came out of the
bedroom and out from defendant's attaché case, he took something
and placed it on the table in front of the plaintiff. They also took
plaintiff's wife who was at that time at the boutique near his house
and likewise arrested Torabian, who was playing chess with him in
the bedroom and both were handcuffed together. Plaintiff was not
told why he was being handcuffed and why the privacy of his house,
especially his bedroom was invaded by defendant. He was not
allowed to use the telephone. In fact, his telephone was unplugged.
He asked for any warrant, but the defendant told him to `shut up.’ He
was nevertheless told that he would be able to call for his lawyer
who can defend him.
“The plaintiff took note of the fact that when the defendant invited
him to come out to meet his cousin, his safe was opened where he
kept the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet
worth $15,000.00 and a pair of earrings worth $10,000.00. He also
discovered missing upon his release his 8 pieces hand-made Persian
carpets, valued at $65,000.00, a painting he bought for P30,000.00
together with his TV and betamax sets. He claimed that when he was
handcuffed, the defendant took his keys from his wallet. There was,
therefore, nothing left in his house.
“That his arrest as a heroin trafficker x x x had been well publicized
throughout the world, in various newspapers, particularly in
Australia, America, Central Asia and in the Philippines. He was
identified in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on
television, not only in the Philippines, but also in America and in
Germany. His friends in said places informed him that they saw him
on TV with said news.
“After the arrest made on plaintiff and Torabian, they were brought
to Camp Crame handcuffed together, where they were detained for
three days without food and water."[1]
During the trial, the law firm of Luna, Sison and Manas, filed a
special appearance for Scalzo and moved for extension of time to file
an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be
raised. The trial court granted the motion. On 27 October 1988,
Scalzo filed another special appearance to quash the summons on the
ground that he, not being a resident of the Philippines and the action
being one in personam, was beyond the processes of the court. The
motion was denied by the court, in its order of 13 December 1988,
holding that the filing by Scalzo of a motion for extension of time to
file an answer to the complaint was a voluntary appearance
equivalent to service of summons which could likewise be construed
a waiver of the requirement of formal notice. Scalzo filed a motion
for reconsideration of the court order, contending that a motion for
an extension of time to file an answer was not a voluntary
appearance equivalent to service of summons since it did not seek an
affirmative relief. Scalzo argued that in cases involving the United
States government, as well as its agencies and officials, a motion for
extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the
defenses to be raised and (2) to refer the case to a Philippine lawyer
who would be expected to first review the case. The court a
quo denied the motion for reconsideration in its order of 15 October
1989.
Scalzo filed a petition for review with the Court of Appeals, there
docketed CA-G.R. No. 17023, assailing the denial. In a decision,
dated 06 October 1989, the appellate court denied the petition and
affirmed the ruling of the trial court. Scalzo then elevated the
incident in a petition for review on certiorari, docketed G.R. No.
91173, to this Court. The petition, however, was denied for its failure
to comply with SC Circular No. 1-88; in any event, the Court added,
Scalzo had failed to show that the appellate court was in error in its
questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990,
was issued (a) declaring Scalzo in default for his failure to file a
responsive pleading (answer) and (b) setting the case for the
reception of evidence. On 12 March 1990, Scalzo filed a motion to
set aside the order of default and to admit his answer to the
complaint. Granting the motion, the trial court set the case for pre-
trial. In his answer, Scalzo denied the material allegations of the
complaint and raised the affirmative defenses (a) of Minucher’s
failure to state a cause of action in his complaint and (b) that Scalzo
had acted in the discharge of his official duties as being merely an
agent of the Drug Enforcement Administration of the United States
Department of Justice. Scalzo interposed a counterclaim of
P100,000.00 to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of
the civil case, Scalzo filed a motion to dismiss the complaint on the
ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note No. 414 of the
United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification,
dated 11 June 1990, of Vice Consul Donna Woodward, certifying
that the note is a true and faithful copy of its original. In an order of
25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction
with this Court, docketed G.R. No. 94257 and entitled "Arthur W.
Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The
case was referred to the Court of Appeals, there docketed CA-G.R.
SP No. 22505, per this Court’s resolution of 07 August 1990. On 31
October 1990, the Court of Appeals promulgated its decision
sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for
review with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al.”
(cited in 214 SCRA 242), appealing the judgment of the Court of
Appeals. In a decision, dated 24 September 1992, penned by Justice
(now Chief Justice) Hilario Davide, Jr., this Court reversed the
decision of the appellate court and remanded the case to the lower
court for trial. The remand was ordered on the theses (a) that the
Court of Appeals erred in granting the motion to dismiss of Scalzo
for lack of jurisdiction over his person without even considering the
issue of the authenticity of Diplomatic Note No. 414 and (b) that the
complaint contained sufficient allegations to the effect that Scalzo
committed the imputed acts in his personal capacity and outside the
scope of his official duties and, absent any evidence to the contrary,
the issue on Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17
November 1995, the trial court reached a decision; it adjudged:
“WHEREFORE, and in view of all the foregoing considerations,
judgment is hereby rendered for the plaintiff, who successfully
established his claim by sufficient evidence, against the defendant in
the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory
damages of P520,000.00; moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take
note of the lien of the Court on this judgment to answer for the
unpaid docket fees considering that the plaintiff in this case instituted
this action as a pauper litigant.’"[2]
While the trial court gave credence to the claim of Scalzo and the
evidence presented by him that he was a diplomatic agent entitled to
immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official
duties. On appeal, the Court of Appeals reversed the decision of the
trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of
duty and thereby immune from the criminal and civil jurisdiction of
the “Receiving State” pursuant to the terms of the Vienna
Convention.
Hence, this recourse by Minucher. The instant petition for review
raises a two-fold issue: (1) whether or not the doctrine of
conclusiveness of judgment, following the decision rendered by this
Court in G.R. No. 97765, should have precluded the Court of
Appeals from resolving the appeal to it in an entirely different
manner, and (2) whether or not Arthur Scalzo is indeed entitled to
diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res
judicata, would require 1) the finality of the prior judgment, 2) a
valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an
identity of the parties, subject matter and causes of action. [3] Even
while one of the issues submitted in G.R. No. 97765 - "whether or
not public respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit conformably
with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No.
97765, however, has not resolved that point with finality. Indeed, the
Court there has made this observation -
"It may be mentioned in this regard that private respondent himself,
in his Pre-trial Brief filed on 13 June 1990, unequivocally states that
he would present documentary evidence consisting of DEA records
on his investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus reserved his
right to present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving claim in
the belated motion to dismiss cannot be relied upon for a reasonable,
intelligent and fair resolution of the issue of diplomatic immunity." [4]
Scalzo contends that the Vienna Convention on Diplomatic
Relations, to which the Philippines is a signatory, grants him
absolute immunity from suit, describing his functions as an agent of
the United States Drugs Enforcement Agency as “conducting
surveillance operations on suspected drug dealers in the Philippines
believed to be the source of prohibited drugs being shipped to the
U.S., (and) having ascertained the target, (he then) would inform the
Philippine narcotic agents (to) make the actual arrest." Scalzo has
submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May
1990;
2. Exh. '1' - Certification of Vice Consul Donna K.
Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October
1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17
November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October
1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R.
Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy
Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the
1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the
Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez,
addressed to the Chief Justice of this Court.[5]
The documents, according to Scalzo, would show that: (1) the United
States Embassy accordingly advised the Executive Department of the
Philippine Government that Scalzo was a member of the diplomatic
staff of the United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August
1988; (2) that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with
respect to the case pursuant to the provisions of the Vienna
Convention on Diplomatic Relations; and (3) that the United States
Embassy repeatedly urged the Department of Foreign Affairs to take
appropriate action to inform the trial court of Scalzo’s diplomatic
immunity. The other documentary exhibits were presented to
indicate that: (1) the Philippine government itself, through its
Executive Department, recognizing and respecting the diplomatic
status of Scalzo, formally advised the “Judicial Department” of his
diplomatic status and his entitlement to all diplomatic privileges and
immunities under the Vienna Convention; and (2) the Department of
Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13" consisting of his reports
of investigation on the surveillance and subsequent arrest of
Minucher, the certification of the Drug Enforcement Administration
of the United States Department of Justice that Scalzo was a special
agent assigned to the Philippines at all times relevant to the
complaint, and the special power of attorney executed by him in
favor of his previous counsel[6] to show (a) that the United States
Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a
member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the
cooperation of the Philippine law enforcement officials and in the
exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the
Philippine Department of Foreign Affairs itself recognized that
Scalzo during his tour of duty in the Philippines (14 October 1985 up
to 10 August 1988) was listed as being an Assistant Attaché of the
United States diplomatic mission and accredited with diplomatic
status by the Government of the Philippines. In his Exhibit 12,
Scalzo described the functions of the overseas office of the United
States Drugs Enforcement Agency, i.e., (1) to provide criminal
investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of
the host country, 2) to establish and maintain liaison with the host
country and counterpart foreign law enforcement officials, and 3) to
conduct complex criminal investigations involving international
criminal conspiracies which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification
of centuries-old customary law and, by the time of its ratification on
18 April 1961, its rules of law had long become stable. Among the
city states of ancient Greece, among the peoples of the
Mediterranean before the establishment of the Roman Empire, and
among the states of India, the person of the herald in time of war and
the person of the diplomatic envoy in time of peace were universally
held sacrosanct.[7] By the end of the 16th century, when the earliest
treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary
international law.[8] Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the head of state
himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted
with the external affairs of the state. Where a state would wish to
have a more prominent diplomatic presence in the receiving state, it
would then send to the latter a diplomatic mission. Conformably with
the Vienna Convention, the functions of the diplomatic mission
involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving
state.[9]
The Convention lists the classes of heads of diplomatic missions to
include (a) ambassadors or nuncios accredited to the heads of state,
[10]
 (b) envoys,[11] ministers or internunciosaccredited to the heads of
states; and (c) charges d' affairs[12] accredited to the ministers of
foreign affairs.[13] Comprising the "staff of the (diplomatic) mission"
are the diplomatic staff, the administrative staff and the technical and
service staff. Only the heads of missions, as well as members of the
diplomatic staff, excluding the members of the administrative,
technical and service staff of the mission, are accorded diplomatic
rank. Even while the Vienna Convention on Diplomatic Relations
provides for immunity to the members of diplomatic missions, it
does so, nevertheless, with an understanding that the same be
restrictively applied. Only "diplomatic agents," under the terms of
the Convention, are vested with blanket diplomatic immunity from
civil and criminal suits. The Convention defines "diplomatic agents"
as the heads of missions or members of the diplomatic staff, thus
impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective states
in concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of passports
and visas, authentication of documents, and administration of oaths,
do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not
charged with the duty of representing their states in political
matters. Indeed, the main yardstick in ascertaining whether a
person is a diplomat entitled to immunity is the determination of
whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits “9” to “13,” that he was
an Assistant Attaché of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attaché belongs
to a category of officers in the diplomatic establishment who may be
in charge of its cultural, press, administrative or financial affairs.
There could also be a class of attaches belonging to certain ministries
or departments of the government, other than the foreign ministry or
department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the
like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe,
analyze and interpret trends and developments in their respective
fields in the host country and submit reports to their own ministries
or departments in the home government.[14] These officials are not
generally regarded as members of the diplomatic mission, nor are
they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem
motam, respectively, on 29 May 1990, 25 October 1991 and 17
November 1992. The presentation did nothing much to alleviate the
Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public
respondent gravely abused its discretion in dismissing Civil Case No.
88-45691 on the basis of an erroneous assumption that simply
because of the diplomatic note, the private respondent is clothed with
diplomatic immunity, thereby divesting the trial court of jurisdiction
over his person.
“x x x           x x x           x x x
“And now, to the core issue - the alleged diplomatic immunity of the
private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1)
year, eight (8) months and seventeen (17) days from the time his
counsel filed on 12 September 1988 a Special Appearance and
Motion asking for a first extension of time to file the Answer
because the Departments of State and Justice of the United States of
America were studying the case for the purpose of determining his
defenses, before he could secure the Diplomatic Note from the US
Embassy in Manila, and even granting for the sake of argument that
such note is authentic, the complaint for damages filed by petitioner
cannot be peremptorily dismissed.
“x x x           x x x           x x x
"There is of course the claim of private respondent that the acts
imputed to him were done in his official capacity. Nothing supports
this self-serving claim other than the so-called Diplomatic Note. x x
x. The public respondent then should have sustained the trial court's
denial of the motion to dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not have been
overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been
proved. The undue haste with which respondent Court yielded to the
private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08
November 1992, issued by the Office of Protocol of the Department
of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would)
show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August 1988) was listed
as an Assistant Attaché of the United States diplomatic mission and
was, therefore, accredited diplomatic status by the Government of
the Philippines." No certified true copy of such "records," the
supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government. In World
Health Organization vs. Aquino,[15] the Court has recognized that, in
such matters, the hands of the courts are virtually tied. Amidst
apprehensions of indiscriminate and incautious grant of immunity,
designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of
Foreign Affairs, to be most circumspect, that should particularly be
no less than compelling, in its post litem motam issuances. It might
be recalled that the privilege is not an immunity from the observance
of the law of the territorial sovereign or from ensuing legal liability;
it is, rather, an immunity from the exercise of territorial jurisdiction.
[16]
 The government of the United States itself, which Scalzo claims
to be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an
acknowledged diplomatic title and “performs duties of diplomatic
nature.”[17] Supplementary criteria for accreditation are the
possession of a valid diplomatic passport or, from States which do
not issue such passports, a diplomatic note formally representing the
intention to assign the person to diplomatic duties, the holding of a
non-immigrant visa, being over twenty-one years of age, and
performing diplomatic functions on an essentially full-time basis.
[18]
 Diplomatic missions are requested to provide the most accurate
and descriptive job title to that which currently applies to the duties
performed. The Office of the Protocol would then assign each
individual to the appropriate functional category. [19]
But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked
for the United States Drug Enforcement Agency and was tasked to
conduct surveillance of suspected drug activities within the country
on the dates pertinent to this case. If it should be ascertained that
Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy
could then be resolved under the related doctrine of State Immunity
from Suit.
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign
from suit[20] and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity. [21] If the
acts giving rise to a suit are those of a foreign government done by
its foreign agent, although not necessarily a diplomatic personage,
but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent.
Suing a representative of a state is believed to be, in effect, suing the
state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim
- par in parem, non habet imperium - that all states are sovereign
equals and cannot assert jurisdiction over one another. [22] The
implication, in broad terms, is that if the judgment against an official
would require the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the
damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally impleaded.
[23]
In United States of America vs. Guinto,[24] involving officers of the
United States Air Force and special officers of the Air Force Office
of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has
ruled -
"While the doctrine (of state immunity) appears to prohibit only suits
against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot
for a moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified against
the complainant. It follows that for discharging their duties as agents
of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be
sued. x x x As they have acted on behalf of the government, and
within the scope of their authority, it is that government, and not the
petitioners personally, [who were] responsible for their acts." [25]
This immunity principle, however, has its limitations. Thus, Shauf
vs. Court of Appeals[26] elaborates:
“It is a different matter where the public official is made to account
in his capacity as such for acts contrary to law and injurious to the
rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen,
et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal
acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit against the State
within the rule of immunity of the State from suit. In the same tenor,
it has been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under
an assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the State
may not be sued without its consent. The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument
for perpetrating an injustice.
“x x x           x x x            x x x
“(T)he doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done
with malice and in bad faith or beyond the scope of his authority and
jurisdiction.”[27]
A foreign agent, operating within a territory, can be cloaked with
immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between
the two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine territory,
under the RP-US Military Bases Agreement. While evidence is
wanting to show any similar agreement between the governments of
the Philippines and of the United States (for the latter to send its
agents and to conduct surveillance and related activities of suspected
drug dealers in the Philippines), the consent or imprimatur of the
Philippine government to the activities of the United States Drug
Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two
countries, certifications from officials of both the Philippine
Department of Foreign Affairs and the United States Embassy, as
well as the participation of members of the Philippine Narcotics
Command in the “buy-bust operation” conducted at the residence of
Minucher at the behest of Scalzo, may be inadequate to support the
"diplomatic status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not consent,
to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of
Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law
enforcers who would then be expected to make the arrest. In
conducting surveillance activities on Minucher, later acting as the
poseur-buyer during the buy-bust operation, and then becoming a
principal witness in the criminal case against Minucher, Scalzo
hardly can be said to have acted beyond the scope of his official
function or duties.
All told, this Court is constrained to rule that respondent Arthur
Scalzo, an agent of the United States Drug Enforcement Agency
allowed by the Philippine government to conduct activities in the
country to help contain the problem on the drug traffic, is entitled to
the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna,
JJ., concur
 Publishing, Co., 1966, p. 19.)
 Rollo, pp. 39-42.
[1]

 Envoys are diplomatic agents of the second class. This is the title
[11]

 Rollo. p. 51.
[2]
of the head of legation as distinguished from an embassy, the head of
which is called Ambassador Extraordinary and Plenipotentiary. Like
 Linzag vs. CA, 291 SCRA 304.
[3]
the Ambassador, the envoy is also accredited to the Head of State.
(Gamboa, p. 190.)
 Minucher vs. Court of Appeals, 214 SCRA 242.
[4]

 Charges d' Affairs are either en titre or ad interim. Charges d'

[12]

 For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.

[5]
Affairs en titre are appointed on a permanent basis and belong to the
fourth class of diplomatic envoys, the other three being ambassadors,
 For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.
[6]
ministers plenipotentiary and envoys extraordinary, and ministers
resident. He is the head of the legation in his own right and is not
 Eileen Denza, "Diplomatic Law, A Commentary on the Vienna
[7]
accredited to the head of State but to the foreign office. According to
Convention on Diplomatic Relations," 2nd Edition, Claredon Press, Radloric, charges d' affairs are sometimes used to described a person
Oxford, 1998, at 210. who has been placed in custody of the archives and other property of
a mission in a country with which formal diplomatic relations are not
 Ibid.
[8]
maintained. Charges d' affairs ad interim, in contrast are usually
those second in command of the diplomatic mission – minister,
[9]
 Article 3 of the Vienna Convention enumerates the functions of counselor or first secretary, who are only temporarily in charge of
the diplomatic mission as the mission during the absence of the head of the mission. He is not
(a) representing the sending State in the receiving State; accredited either to the Head of State or the Foreign Office.
(b) protecting in the receiving State the interests of the sending (Gamboa, Ibid., pp. 51-52.)
State and of its nationals, within the limits permitted by
international law;  The classification of diplomatic representatives was considered
[13]

(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments
in the receiving State, and reporting thereon to the
Government of the sending State;
(e) promoting friendly relations between the sending State and
the receiving State, and developing their economic, cultural
and scientific relations.
[10]
 Ambassadors are diplomatic agents of the first class, who deal, as
a rule with the Minister of Foreign Affairs or the Secretary of State,
as the case may be. (Melquiades J. Gamboa, "Elements of
Diplomatic and Consular Practice, A Glossary," Central Lawbook
significant before because direct communication with the head of
state depended on the rank of the diplomat and, moreover, only
powerful states were regarded as entitled to send envoys of the
highest rank. At present however, diplomatic matters are usually
discussed not with the head of state but with the foreign secretary
regardless of the diplomat's rank. Moreover, it has become the
practice now for even the smallest and the weakest states to send
diplomatic representatives of the highest rank, even to the major
powers. (Cruz, International Law, 1985 Edition, p. 145.)
 Gamboa, supra., pp. 32-33.
[14]
 business as a commercial enterprise do not constitute a sovereign act.
 48 SCRA 242.
[15]
(D.W. Grieg, “International Law,” London Butterworths, 1970, p.
221.)
 J.L. Brierly, "The Law of Nations," Oxford University Press, 6th
[16]

Edition, 1963, p. 244.  See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812),
[22]

cited in Charles G. Fenwick, "International Law," New York, 3rd

 Denza, supra., at 16.
[17]
Edition (1948), p. 307.

 Ibid.
[18]
 United States of America, et al. vs. Guinto, etc., et al., G.R. No.
[23]

76607, 26 February 1990.

 Ibid., at 55.
[19]

 182 SCRA 644.

[24]

 Charles G. Fenwick, "International Law," Appleton-Century-

[20]

Crofts, Inc., New York, 1948, p. 307-308.  At pp. 653-659.

[25]

 The international law on sovereign immunity of states from suit in

[21]
 191 SCRA 713
[26]

the courts of another state has evolved from national court decisions
with good deal of variance in perspectives. Even though national  At pp. 727-728.
[27]

cases have been the major source of pronouncements on sovereign

immunity, it should be noted that these constitute evidence of
customary international law now widely recognized. In the latter half
of the 20th century, a great deal of consensus on what is covered by Batas.org 
sovereign immunity appears to be emerging, i.e., that state immunity
covers only acts which deal with the government functions of a state,
and excludes, any of its commercial activities, or activities not
related to "sovereign acts." The consensus involves a more defined
differentiation between public acts (juri imperii) and private acts
(jure gestionis). (Gary L. Maris, “International Law, An
Introduction,” University Press of America, 1984, p. 119; D.W.
Grieg, "International Law," London Butterworths, 1970, p. 221.)

The United States for example, does not claim immunity for its
publicly owned or operated merchant vessels. The Italian courts have
rejected claims of immunity from the US Shipping Board, although a
state body, as it could not be identified with the American
government on the ground that undertaking maritime navigation and
 Supreme Court of the Philippines
150-C Phil. 471  Respondents COSAC officers filed their answer joining issue against
G.R. No. L-35131, November 29, 1972
THE WORLD HEALTH ORGANIZATION AND DR.
LEONCE VERSTUYFT, PETITIONERS, VS. HON.
BENJAMIN H. AQUINO, AS PRESIDING JUDGE OF
BRANCH VIII, COURT OF FIRST INSTANCE OF RIZAL,
MAJOR WILFREDO CRUZ, MAJOR ANTONIO G.
RELLEVE, AND CAPTAIN PEDRO S. NAVARRO OF THE
CONSTABULARY OFFSHORE ACTION CENTER (COSAC),
RESPONDENTS.  It is undisputed in the record that petitioner Dr. Leonce Verstuyft,
DECISION
TEEHANKEE, J.:
An original action for certiorari and prohibition to set aside
respondent judge's refusal to quash a search warrant issued by him at
the instance of respondents COSAC (Constabulary Offshore Action
Center) officers for the search and seizure of the personal effects of
petitioner official of the WHO (World Health Organization)
notwithstanding his being entitled to diplomatic immunity, as duly
recognized by the executive branch of the Philippine Government
and to prohibit respondent judge from further proceedings in the
matter.
Upon filing of the petition, the Court issued on June 6, 1972 a
restraining order enjoining respondents from executing the search
warrant in question.
petitioners and seeking to justify their act of applying for and
securing from respondent judge the warrant for the search and
seizure of ten crates consigned to petitioner Verstuyft and stored at
the Eternit Corporation warehouse on the ground that they "contain
large quantities of highly dutiable goods" beyond the official needs
of said petitioner "and the only lawful way to reach these articles and
effects for purposes of taxation is through a search warrant." [1]
The Court thereafter called for the parties' memoranda in lieu of oral
argument, which were filed on August 3, 1972 by respondents and
on August 21, 1972 by petitioners, and the case was thereafter
deemed submitted for decision.
who was assigned on December 6, 1971 by the WHO from his last
station in Taipei to the Regional Office in Manila as Acting Assistant
Director of Health Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on July 22, 1951 between
the Philippine Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic
privileges and immunities, personal inviolability, inviolability of the
official's properties, exemption from local jurisdiction, and
exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12)
crates entered the Philippines as unaccompanied baggage on January
10, 1972, they were accordingly allowed free entry from duties and
taxes.  The crates were directly stored at the Eternit Corporation's
warehouse at Mandaluyong, Rizal, "pending his relocation into
permanent quarters upon the offer of Mr. Berg Vice President of
Eternit who was once a patient of Dr. Verstuyft in the Congo." [2]
Nevertheless, as above stated, respondent judge issued, on March 3,
1972 upon application on the same date of respondents COSAC
officers search warrant No. 72-138 for alleged violation of Republic
Act 4712 amending section 3601 of the Tariff and Customs
Code[3] directing the search and seizure of the dutiable items in said
crates.
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional
Director for the Western Pacific with station in Manila, Secretary of
Foreign Affairs Carlos P. Romulo personally wired on the same date
respondent judge advising that "Dr. Verstuyft is entitled to immunity
from search in respect of his personal baggage as accorded to
members of diplomatic missions" pursuant to the Host Agreement
and requesting suspension of the search warrant order "pending
clarification of the matter from the ASAC."
Respondent judge set the Foreign Secretary's request for hearing and
heard the same on March 16, 1972, but notwithstanding the official
plea of diplomatic immunity interposed by a duly authorized
representative of the Department of Foreign Affairs who furnished
the respondent judge with a list of the articles brought in by
petitioner Verstuyft, respondent judge issued his order of the same
date maintaining the effectivity of the search warrant issued by him,
unless restrained by a higher court.[4]
Petitioner Verstuyft's special appearance on March 24, 1972 for the
limited purpose of pleading his diplomatic immunity and motion to
quash search warrant of April 12, 1972 failed to move respondent
judge.
At the hearing thereof held on May 8, 1972, the Office of the
Solicitor General appeared and filed an extended comment stating
the official position of the executive branch of the Philippine
Government that petitioner Verstuyft is entitled to diplomatic
immunity, he did not abuse his diplomatic immunity,[5]  and that
court proceedings in the receiving or host State are not the proper
remedy in the case of abuse of diplomatic immunity. [6]
The Solicitor General accordingly joined petitioner Verstuyft's
prayer for the quashal of the search warrant.  Respondent judge
nevertheless summarily denied quashal of the search warrant per his
order of May 9, 1972 "for the same reasons already stated in (his)
aforesaid order of March 16, 1972" disregarding Foreign Secretary
Romulo's plea of diplomatic immunity on behalf of Dr. Verstuyft.
Hence, the petition at bar.  Petitioner Verstuyft has in this Court been
joined by the World Health Organization (WHO) itself in full
assertion of petitioner Verstuyft's being entitled "to all privileges and
immunities, exemptions and facilities accorded to diplomatic envoys
in accordance with international law" under section 24 of the Host
Agreement.
The writs of certiorari and prohibition should issue as prayed for.
1.       The executive branch of the Philippine Government
has expressly  recognized that petitioner Verstuyft is entitled to
diplomatic immunity pursuant to the provisions of the Host
Agreement.  The Department of Foreign Affairs formally advised
respondent judge of the Philippine Government's official position
that accordingly "Dr. Verstuyft cannot be the subject of a Philippine
court summons without violating an obligation in international law
of the Philippine Government" and asked for the quashal of the
search warrant, since his personal effects and baggages after having
been allowed free entry from all customs duties and taxes, may not
be baselessly claimed to have been "unlawfully imported" in
violation of the tariff and customs code us claimed by respondents
COSAC officers.  The Solicitor General, as principal law officer of
the Government,[7] likewise expressly affirmed said petitioner's right
to diplomatic immunity and asked for the quashal of the search
warrant.
It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, [8]  and
where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting
under his direction.[9] Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention
of property, as to embarrass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that "in such
cases the judicial department of (this) government follows the action
of the political branch and will not embarrass the latter by assuming
an antagonistic jurisdiction."[10]
2.       The unfortunate fact that respondent judge chose to rely on the
suspicion of respondents COSAC officers "that the other remaining
crates unopened contain contraband items"[11]  rather than on the
categorical assurance of the Solicitor-General that petitioner
Verstuyft did not abuse his diplomatic immunity,[12]  which was
based in turn on the official positions taken by the highest executive
officials with competence and authority to act on the matter, namely,
the Secretaries of Foreign Affairs and of Finance, could not justify
respondent judge's denial of the quashal of the search warrant.
As already stated above, and brought to respondent court's attention,
[13]
 the Philippine Government is bound by the procedure laid down
in Article VII of the convention on the Privileges and Immunities of
the Specialized Agencies of the United Nations[14]  for consultations
between the Host State and the United Nations agency concerned to
determine in the first instance the fact of occurrence of the abuse
alleged, and if so, to ensure that no repetition occurs and for other
recourses.  This is a treaty commitment voluntarily assumed by the
Philippine Government and as such, has the force and effect of law.
Hence, even assuming arguendo as against the categorical assurance
of the executive branch of government that respondent judge had
some ground to prefer respondents COSAC officers' suspicion that
there had been an abuse of diplomatic immunity, the continuation of
the search warrant proceedings before him was not the proper
remedy.  He should, nevertheless, in deference to the exclusive com-
petence and jurisdiction of the executive branch of government to act
on the matter, have acceded to the quashal of the search warrant, and
forwarded his findings or grounds to believe that there had been such
abuse of diplomatic immunity to the Department of Foreign Affairs
for it to deal with in accordance with the aforementioned
Convention, if so warranted.
3.       Finally, the Court has noted with concern the apparent lack of
coordination between the various departments involved in the
subject-matter of the case at bar, which made it possible for a small
unit, the COSAC, to which respondents officers belong, seemingly to
disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of
Finance that petitioner Verstuyft is entitled to diplomatic immunity,
as confirmed by the Solicitor-General as the principal law officer of
the Government.  Such executive determination properly
implemented should have normally constrained respondents officers
themselves to obtain the quashal of the search warrant secured by
them rather than oppose such quashal up to this Court, to the
embarrassment of said department heads, if not of the Philippine
Government itself vis-a-vis the petitioners.[15]
The seriousness of the matter is underscored when the provisions of
Republic Act 75 enacted since October 21, 1946 to safeguard the
jurisdictional immunity of diplomatic officials in the Philippines are
taken into account.  Said Act declares as null and void writs or
processes sued out or prosecuted whereby inter alia the person of an
ambassador or public minister is arrested or imprisoned or his goods
or chattels are seized or attached and makes it a penal offense for
"every person by whom the same is obtained or prosecuted, whether
as party or as attorney, and every officer concerned in executing it"
to obtain or enforce such writ or process.[16]
The Court, therefore, holds that respondent judge acted without
jurisdiction and with grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft.
ACCORDINGLY , the writs of certiorari and prohibition prayed
for are hereby granted, and the temporary restraining order
heretofore issued against execution or enforcement of the questioned
search warrant, which is hereby declared null and void, is hereby
made permanent.  The respondent court is hereby commanded to
desist from further proceedings in the matter.  No costs, none having
been prayed for.
The clerk of court is hereby directed to furnish a copy of this
decision to the Secretary of Justice for such action as he may find
appropriate with regard to the matters mentioned in paragraph 3
hereof.
SO ORDERED.
  
  Concepcion, C.J., Makalintal, Zaldivar, Fernando, Barredo,
Makasiar, Antonio, and Esguerra, JJ., concur.
Castro, J., reserves his vote.
 Respondents' Answer, Rollo, p. 138.
[1]
 Citygram of March 6, 1972 of Secretary of Foreign Affairs Carlos
[2]
P. Romulo to respondent judge, Annex D, petition.
 This penal provision of the tariff & customs code imposes a
[3]
penalty of a fine of not less than P600.00 nor more than P500.00 and
imprisonment for not less than 6 months nor more than two years for
unlawful importation and illegal possession of goods imported
contrary to law, upon "Any person who shall fraudulently import or
bring into the Philippines, or assist in so doing, any article, contrary
to law, or shall receive, conceal, buy, sell, or in any manner facilitate
the transportation, concealment, or sale of such article after
importation, knowing the same to have been imported contrary to
law," and states that "(W)hen, upon trial for a violation of this
section, the defendant is shown to have or to have had possession of
the article in question, such possession shall be deemed sufficient
evidence to authorize conviction, unless the defendant shall explain
the possession to the satisfaction of the court.  * * *"
 Respondent judge's justification in his said order reads in part as
[4]
follows: 
"* * * From the reply submitted by Captains Pedro S. Navarro and
Antonio G. Relleve of the COSAC, it appears that the articles
contained in the two baggages allegedly belonging to Dr. Verstuyft
so far opened by them, are 120 bottles of assorted foreign wine and
15 tins of PX goods which are said to be dutiable under the Customs
and Tariff Code of the Philippines.  The two COSAC officers further
manifested that they positively believe that there are more
contraband items in the nine other huge crates which are still
unopened.  * * * The articles so far found in the two crates opened
by Capt. Navarro and Relieve are not mentioned in the list of articles
brought in by Dr. Verstuyft and are highly dutiable under the
Customs and Tariff Code and according to said officers they have
strong reasons to believe that the other remaining crates unopened
contain contraband items.  The Court is certain that the World Health
Organization would not tolerate violations of local laws by its
officials and/or representatives under a claim of immunity granted to
them by the host agreement.  Since the right of immunity invoked by
the Department of Foreign Affairs is admittedly relative and not
absolute, and there are strong and positive indications of violation of
local laws, the Court declines to suspend the effectivity of the search
warrant issued in the case at bar.  * * *"
 Aside from the Foreign Affairs Department's certification that the
[5]
importation of 120 bottles of wine is "ordinary in diplomatic
practice," the Solicitor General took pains to inform the lower court
that the packing of Dr. Verstuyft's baggages and personal effects was
done "by a packing company in Taipei . . . (and) Dr. Verstuyft had
no hand in the preparation of the packing list of his personal effects
which has been assailed by ASAC agents.  Also implicit from the
foregoing is the fact that Dr. Verstuyft had no intention to violate
Philippine laws by selling the 120 bottles of foreign wine and 15 tins
of PX goods in the Philippines.  Otherwise, he need not have stored
the same at the Eternit Corporation where they may be subject to the
probing eyes of government agents."
 The Solicitor General cites that the Convention on the Privileges
[6]
and Immunites of the Specialized Agencies of the U.N. adopted on
Nov. 21, 1947, and made applicable by ratification to the WHO
contains Article VII on abuse of privilege, calling for consultations
between the Host State and the U.N. agency concerned and in case
no satisfactory result is reached for submittal to the International
Court of Justice for determination whether "such an abuse has
occurred," and providing for the customary procedure of requiring
the offending official's departure in certain instances.
 Section 1661, Rev. Administrative Code.
[7]
 See Trost vs. Tompkins, 44A, 2b 226.
[8]
 See Ins. Co., 24 N.E. 2d 81, 281 N.Y. 362, reversing 5 N.Y.S. 2d
[9]
295, 254 App. Div. 511, reargument denied 26 N. E. 2d 808, 282
N.Y. 676, motion denied 29 N.E. 2d 939, 284 N.Y. 633 (27-5th D-
1127).
 See, United States vs.  Lee, 106 U.S. 196, 209, 1 S. Ct. 240, 27 L.
[10]
Ed. 171; Ex parte Republic of Peru, 318 U. S. 578, 63 S. CT. 793, 87
L. Ed. 1014; Republic of Mexico vs. Hoffman, 324, U.S. 30, 35, 65
S. Ct. 530, 89 L. Ed. 729; Welleman vs. Chase Manhattan Bank 192
N.Y.S. 2d 469.
 Supra, fn. 4.
[11]
 Supra, fn. 5.
[12]
 Supra, fn. 6.
[13]
 This Convention was adopted by the U.N. General Assembly on
[14]
Nov. 21, 1947; it was concurred in by the Philippine Senate under
Sen. Resolution No. 21, May 17, 1949; and the Philippine Instrument
of Ratification was signed by the President of the Republic on Feb.
21, 1959 applying the Convention to the WHO.  See 45 O.G. 3187
(1949) and Vol. 1, Phil. Treaty Series, p. 621.
 In their answer to petition, respondents COSAC officers insist on
[15]
their "belief and contention" that the 120 bottles of foreign wine
found by them "are far in excess, considered by any reasonable
standard of taste and elegance in the diplomatic world of the official
mission and needs of a diplomat, much more of the status of
(petitioner), hence, they should be taxed" and on their "conviction
that the articles and effects * * * are not in fact and in truth personal
effects * * * so as to be comprehended within the privileges and
immunities accorded representatives of (WHO)." Rollo, pp. 138-139.
 The pertinent section of Rep. Act 75, entitled "An act to penalize
[16]
acts which would impair the proper observance by the Republic and
inhabitants of the Philippines of the immunities, rights and privileges
of duly accredited foreign diplomatic and consular agents in the
Philippines," reads:  "Any writ or process sued out or prosecuted
by any person in any courtof the Republic of the Philippines, or
by any judge or justice, whereby the person of any ambassador or
public minister of any foreign State, authorized and received as such
by the President, or any domestic or domestic servant of any such
ambassador or minister is arrested or imprisoned, or his goods or
chattels are distrained, seized, or attached, shall be deemed void 
and every person by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer concerned in
executing it, shall upon conviction, be punished by imprisonment for
not more than three years and a fine of not exceeding two hundred
pesos in the discretion of the court." (Section 4, italics supplied) As
to whether this Act may be invoked on behalf of petitioner (who
does not pertain to the foreign diplomatic corps), quaere.

Batas.org 
 Supreme Court of the Philippines
380 Phil. 673  prosecution filed a petition for certiorari and mandamus with the
FIRST DIVISION
G.R. No. 125865, January 28, 2000
JEFFREY LIANG (HUEFENG), PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development
Bank (ADB). Sometime in 1994, for allegedly uttering defamatory
words against fellow ADB worker Joyce Cabal, he was charged
before the Metropolitan Trial Court (MeTC) of Mandaluyong City
with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a
warrant issued by the MeTC. After fixing petitioner’s bail at
P2,400.00 per criminal charge, the MeTC released him to the
custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of
Foreign Affairs (DFA) stating that petitioner is covered by immunity
from legal process under Section 45 of the Agreement between the
ADB and the Philippine Government regarding the Headquarters of
the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the
MeTC judge without notice to the prosecution dismissed the two
criminal cases. The latter filed a motion for reconsideration which
was opposed by the DFA. When its motion was denied, the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC
rulings and ordered the latter court to enforce the warrant of arrest it
earlier issued. After the motion for reconsideration was denied,
petitioner elevated the case to this Court via a petition for review
arguing that he is covered by immunity under the Agreement and
that no preliminary investigation was held before the criminal cases
were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
immunity. The DFA’s determination that a certain person is covered
by immunity is only preliminary which has no binding effect in
courts. In receiving ex-parte the DFA’s advice and in motu
proprio dismissing the two criminal cases without notice to the
prosecution, the latter’s right to due process was violated. It should
be noted that due process is a right of the accused as much as it is of
the prosecution. The needed inquiry in what capacity petitioner was
acting at the time of the alleged utterances requires for its resolution
evidentiary basis that has yet to be presented at the proper time. [1] At
any rate, it has been ruled that the mere invocation of the immunity
clause does not ipso facto result in the dropping of the charges.[2]
Second, under Section 45 of the Agreement which provides:
"Officers and staff of the Bank including for the purpose of this
Article experts and consultants performing missions for the Bank
shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity."
the immunity mentioned therein is not absolute, but subject to the
exception that the act was done in "official capacity." It is therefore
necessary to determine if petitioner’s case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the
chance to rebut the DFA protocol and it must be accorded the
opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the commission
of a crime, such as defamation, in the name of official duty. [3] The
imputation of theft is ultra vires and cannot be part of official
functions. It is well-settled principle of law that a public official may
be liable in his personal private capacity for whatever damage he
may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction.[4] It appears that
even the government’s chief legal counsel, the Solicitor General,
does not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a
diplomatic agent, assuming petitioner is such, enjoys immunity from
criminal jurisdiction of the receiving state except in the case of an
action relating to any professional or commercial activity exercised
by the diplomatic agent in the receiving state outside his official
functions.[5] As already mentioned above, the commission of a crime
is not part of official duty.
Finally, on the contention that there was no preliminary investigation
conducted, suffice it to say that preliminary investigation is not a
matter of right in cases cognizable by the MeTC such as the one at
bar.[6] Being purely a statutory right, preliminary investigation may
be invoked only when specifically granted by law.[7] The rule on
criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.
[8]
 Besides, the absence of preliminary investigation does not affect
the court’s jurisdiction nor does it impair the validity of the
information or otherwise render it defective. [9]
WHEREFORE, the petition is DENIED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo,
JJ., concur.
 See United States v. Guinto, 182 SCRA 644 (1990)
[1]
 Chavez v. Sandiganbayan, 193 SCRA 282 (1991)
[2]
 M.H. Wylie v. Rarang, 209 SCRA 357, 368 (1992)
[3]
 Shauf v. CA, 191 SCRA 713 (1990); Animos v. Phil. Veterans
[4]
Affairs Office, 174 SCRA 214 (1989); Dumlao v. CA, 114 SCRA 247
(1982)
 Section 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 (1992)
[5]
 See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 (1997)
[6]
 People v. Abejuela, 38 SCRA 324 (1971)
[7]
  Section 1, Rule 112, Rules of Criminal Procedure.
[8]

 People v. Gomez, 117 SCRA 72 (1982); People v. Casiano, 1

[9]

SCRA 478 (1961)

Batas.org 
 Supreme Court of the Philippines
407 Phil. 414  6)
FIRST DIVISION
G.R. No. 125865, March 26, 2001
JEFFREY LIANG (HUEFENG), PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.
RESOLUTION
YNARES-SANTIAGO, J.:
NAMELY, THE SLANDERING OF A PERSON WHICH
PREJUDGED PETITIONER'S CASE BEFORE THE
METROPOLITAN TRIAL COURT (MTC)-
MANDALUYONG.
THE VIENNA CONVENTION ON DIPLOMATIC
RELATIONS IS NOT APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations [1] for grave oral
defamation filed against petitioner, a Chinese national who was
employed as an Economist by the Asian Development Bank (ADB),
alleging that on separate occasions on January 28 and January 31,
1994, petitioner allegedly uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of ADB. On April 13, 1994, the
Metropolitan Trial Court of Mandaluyong City, acting pursuant to an
advice from the Department of Foreign Affairs that petitioner
enjoyed immunity from legal processes, dismissed the criminal
Informations against him. On a petition for certiorari and mandamus
filed by the People, the Regional Trial Court of Pasig City, Branch
160, annulled and set aside the order of the Metropolitan Trial Court
dismissing the criminal cases.[2]

This resolves petitioner's Motion for Reconsideration of our Decision
dated January 28, 2000, denying the petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A
POLITICAL QUESTION TO BE MADE BY THE
EXECUTIVE BRANCH OF THE GOVERNMENT AND IS
CONCLUSIVE UPON THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL
ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE
ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE
COMPLAINANT TO REBUT THE DFA PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY
MADE A FINDING OF FACT ON THE MERITS,
Petitioner, thus, brought a petition for review with this Court. On
January 28, 2000, we rendered the assailed Decision denying the
petition for review. We ruled, in essence, that the immunity granted
to officers and staff of the ADB is not absolute; it is limited to acts
performed in an official capacity. Furthermore, we held that the
immunity cannot cover the commission of a crime such as slander or
oral defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard.
This Court also granted the Motion for Intervention of the
Department of Foreign Affairs. Thereafter, the parties were directed
to submit their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with
the diplomatic immunity of the ADB, its officials and staff, from
legal and judicial processes in the Philippines, as well as the
constitutional and political bases thereof. It should be made clear that
nowhere in the assailed Decision is diplomatic immunity denied,
even remotely. The issue in this case, rather, boils down to whether
or not the statements allegedly made by petitioner were uttered while
in the performance of his official functions, in order for this case to
fall squarely under the provisions of Section 45 (a) of the
"Agreement Between the Asian Development Bank and the
Government of the Republic of the Philippines Regarding the
Headquarters of the Asian Development Bank," to wit:
Officers ands staff of the Bank, including for the purpose of this
Article experts and consultants performing missions for the Bank,
shall enjoy the following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by
them in their official capacity except when the Bank waives the
immunity.
After a careful deliberation of the arguments raised in petitioner's
and intervenor's Motions for Reconsideration, we find no cogent
reason to disturb our Decision of January 28, 2000. As we have
stated therein, the slander of a person, by any stretch, cannot be
considered as falling within the purview of the immunity granted to
ADB officers and personnel. Petitioner argues that the Decision had
the effect of prejudging the criminal case for oral defamation against
him. We wish to stress that it did not. What we merely stated therein
is that slander, in general, cannot be considered as an act performed
in an official capacity. The issue of whether or not petitioner's
utterances constituted oral defamation is still for the trial court to
determine.
WHEREFORE, in view of the foregoing, the Motions for
Reconsideration filed by petitioner and intervenor Department of
Foreign Affairs are DENIED with FINALITY.
SO ORDERED.
Davide, Jr., C.J., join the concurring opinion of Mr. Justice Puno.
Kapunan, and Pardo, JJ., concur.
Puno, J., Pls. See concurring opinion.
 Criminal Cases Nos. 53170 & 53171 of the Metropolitan Trial
[1]
Court of Mandaluyong City, Branch 60, presided by Hon. Ma. Luisa
Quijano- Padilla.
 SCA Case No. 743 of the Regional Trial Court of Pasig City,
[2]
Branch 160, presided by Hon. Mariano M. Umali.
CONCURRING OPINION
PUNO, J.:
For resolution is the Motion for Reconsideration filed by petitioner
Jeffrey Liang of this Court's decision dated January 28, 2000 which
denied the petition for review. We there held that: the protocol
communication of the Department of Foreign Affairs to the effect
that petitioner Liang is covered by immunity is only preliminary and
has no binding effect in courts; the immunity provided for under
Section 45(a) of the Headquarters Agreement is subject to the
condition that the act be done in an "official capacity"; that
slandering a person cannot be said to have been done in an "official
capacity" and, hence, it is not covered by the immunity agreement;
under the Vienna Convention on Diplomatic Relations, a diplomatic
agent, assuming petitioner is such, enjoys immunity from criminal
jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving state outside his official functions;
the commission of a crime is not part of official duty; and that a
preliminary investigation is not a matter of right in cases cognizable
by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following
arguments:
1. The DFA's determination of immunity is a political
question to be made by the executive branch of the
government and is conclusive upon the courts;
2. The immunity of international organizations is
absolute;
3. The immunity extends to all staff of the Asian
Development Bank (ADB);
4. Due process was fully accorded the complainant to
rebut the DFA protocol;
5. The decision of January 28, 2000 erroneously made
a finding of fact on the merits, namely, the
slandering of a person which prejudged petitioner's
case before the Metropolitan Trial Court (MTC)-
Mandaluyong; and
6. The Vienna Convention on diplomatic relations is
not applicable to this case.
Petitioner contends that a determination of a person's diplomatic
immunity by the Department of Foreign Affairs is a political
question. It is solely within the prerogative of the executive
department and is conclusive upon the courts. In support of his
submission, petitioner cites the following cases: WHO vs. Aquino;
[1]
 International Catholic Migration Commission vs. Calleja;[2] The
Holy See vs. Rosario, Jr.;[3] Lasco vs. United Nations;[4] and DFA
vs. NLRC.[5]
It is further contended that the immunity conferred under the ADB
Charter and the Headquarters Agreement is absolute. It is
designed to safeguard the autonomy and independence of
international organizations against interference from any authority
external to the organizations. It is necessary to allow such
organizations to discharge their entrusted functions effectively. The
only exceptions to this immunity is when there is an implied or
express waiver or when the immunity is expressly limited by statute.
The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's
immunity from local jurisdiction empowers the ADB alone to
determine what constitutes "official acts" and the same cannot
be subject to different interpretations by the member states. It
asserts that the Headquarters Agreement provides for remedies to
check abuses against the exercise of the immunity. Thus, Section 49
states that the "Bank shall waive the immunity accorded to any
person if, in its opinion, such immunity would impede the course of
justice and the waiver would not prejudice the purposes for which
the immunities are accorded." Section 51 allows for consultation
between the government and the Bank should the government
consider that an abuse has occurred. The same section provides the
mechanism for a dispute settlement regarding, among others, issues
of interpretation or application of the agreement.
Petitioner's argument that a determination by the Department of
Foreign Affairs that he is entitled to diplomatic immunity is a
political question binding on the courts, is anchored on the ruling
enunciated in the case of WHO, et al. vs. Aquino, et al.,[6] viz:
"It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the government,
and where the plea of diplomatic immunity is recognized and
affirmed by the executive branch of the government as in the case at
bar, it is then the duty of the courts to accept the claim of immunity
upon appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting
under his direction. Hence, in adherence to the settled principle that
courts may not so exercise their jurisdiction by seizure and detention
of property, as to embarrass the executive arm of the government in
conducting foreign relations, it is accepted doctrine that in such cases
the judicial department of the government follows the action of the
political branch and will not embarrass the latter by assuming an
antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International
Catholic Migration Commission vs. Calleja;[7] The Holy See vs.
Rosario, Jr;[8] Lasco vs. UN;[9] and DFA vs. NLRC.[10]
The case of WHO vs. Aquino involved the search and seizure of
personal effects of petitioner Leonce Verstuyft, an official of the
WHO. Verstyft was certified to be entitled to diplomatic immunity
pursuant to the Host Agreement executed between the Philippines
and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed
against ICMC and IRRI. As international organizations, ICMC and
IRRI were declared to possess diplomatic immunity. It was held that
they are not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over the case
would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or
control by the host country and to ensure the unhampered
performance of their functions.
In Holy See v. Rosario, Jr. involved an action for annulment of sale
of land against the Holy See, as represented by the Papal Nuncio.
The Court upheld the petitioner's defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the
territory of the receiving state, which the envoy holds on behalf of
the sending state for the purposes of the mission, with all the more
reason should immunity be recognized as regards the sovereign
itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for
Natural Resources Exploration was sued before the NLRC for illegal
dismissal. The Court again upheld the doctrine of diplomatic
immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed
against the Asian Development Bank. Pursuant to its Charter and the
Headquarters Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic
immunity enjoyed by international organizations. Petitioner
asserts that he is entitled to the same diplomatic immunity and
he cannot be prosecuted for acts allegedly done in the exercise of
his official functions.
The term "international organizations" -
"is generally used to describe an organization set up by agreement
between two or more states. Under contemporary international law,
such organizations are endowed with some degree of international
legal personality such that they are capable of exercising specific
rights, duties and powers. They are organized mainly as a means for
conducting general international business in which the member states
have an interest."[11]
International public officials have been defined as:
"x x x persons who, on the basis of an international treaty
constituting a particular international community, are appointed by
this international community, or by an organ of it, and are under its
control to exercise, in a continuous way, functions in the interest of
this particular international community, and who are subject to a
particular personal status."[12]
"Specialized agencies" are international organizations having
functions in particular fields, such as posts, telecommunications,
railways, canals, rivers, sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and culture, health and
refugees.[13]
Issues
1. Whether petitioner Liang, as an official of an
international organization, is entitled to diplomatic
immunity;
2. Whether an international official is immune from
criminal jurisdiction for all acts, whether private or
official;
3. Whether the authority to determine if an act is
official or private is lodged in the courts;
4. Whether the certification by the Department of
Foreign Affairs that petitioner is covered by
immunity is a political question that is binding and
conclusive on the courts.
Discussion
I
A perusal of the immunities provisions in various international
conventions and agreements will show that the nature and degree
of immunities vary depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each
of its Members such privileges and immunities as are necessary for
the fulfillment of its purposes.
Article 105(2): Representatives of the Members of the United
Nations and officials of the Organization shall similarly enjoy such
privileges and immunities as are necessary for the independent
exercise of their functions in connection with the Organization."
2. Convention on the Privileges and Immunities of the
United Nations
"Section 2: The United Nations, its property and assets wherever
located and by whomsoever held, shall enjoy immunity from every
form of legal process except insofar as in any particular case it has
expressly waived its immunity. It is, however, understood that no
waiver of immunity shall extend to any measure of execution.
xxx
Section 11 (a): Representatives of Members to the principal and
subsidiary organs of the United Nations x x shall x x x enjoy x x x
immunity from personal arrest or detention and from seizure of their
personal baggage, and, in respect of words spoken or written and all
acts done by them in their capacity as representatives, immunity
from legal process of every kind.
xxx
Section 14: Privileges and immunities are accorded to the
representatives of Members not for the personal benefit of the
individuals themselves, but in order to safeguard the independent
exercise of their functions in connection with the United Nations.
Consequently, a Member not only has the right but is under a duty to
waive the immunity of its representative in any case where in the
opinion of the Member the immunity would impede the course of
justice, and it can be waived without prejudice to the purpose for
which the immunity is accorded.
xxx
Section 18 (a): Officials of the United Nations shall be immune from
legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx
Section 19: In addition to the immunities and privileges specified in
Section 18, the Secretary-General and all Assistant Secretaries-
General shall be accorded in respect of themselves, their spouses and
minor children, the privileges and immunities, exemptions and
facilities accorded to diplomatic envoys, in accordance with
international law.
Section 20: Privileges and immunities are granted to officials in the
interest of the United Nations and not for the personal benefit of the
individuals themselves. The Secretary-General shall have the right
and the duty to waive the immunity of any official in any case where,
in his opinion, the immunity would impede the course of justice and
can be waived without prejudice to the interests of the United
Nations.
xxx
Section 22: Experts x x x performing missions for the United Nations
x x x shall be accorded: (a) immunity from personal arrest or
detention and from seizure of their personal baggage; (b) in respect
of words spoken or written and acts done by them in the course of
the performance of their mission, immunity from legal process of
every kind."
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. The receiving
State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom, or dignity.
xxx
Article 31(1): A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving State. He shall also enjoy
immunity from its civil and administrative jurisdiction, except in
certain cases.
xxx
Article 38 (1): Except in so far as additional privileges and
immunities may be granted by the receiving State, a diplomatic agent
who is a national of or permanently a resident in that State shall
enjoy only immunity from jurisdiction, and inviolability, in respect
of official acts performed in the exercise of his functions."
4. Vienna Convention on Consular Relations
"Article 41(1): Consular officials shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
xxx
Article 43(1): Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative
authorities of the receiving State in respect of acts performed in the
exercise of consular functions.
Article 43(2): The provisions of paragraph 1 of this Article shall not,
however, apply in respect of a civil action either: (a) arising out of a
contract concluded by a consular officer or a consular employee in
which he did not contract expressly or impliedly as an agent of the
sending State; or (b) by a third party for damage arising from an
accident in the receiving State caused by a vehicle, vessel or
aircraft."
5. Convention on the Privileges and Immunities of the
Specialized Agencies
"Section 4: The specialized agencies, their property and assets,
wherever located and by whomsoever held, shall enjoy immunity
from every form of legal process except in so far as in any particular
case they have expressly waived their immunity. It is, however,
understood that no waiver of immunity shall extend to any measure
of execution.
Section 13(a): Representatives of members at meetings convened by
a specialized agency shall, while exercising their functions and
during their journeys to and from the place of meeting, enjoy
immunity from personal arrest or detention and from seizure of their
personal baggage, and in respect of words spoken or written and all
acts done by them in their official capacity, immunity from legal
process of every kind.
xxx
Section 19(a): Officials of the specialized agencies shall be immune
from legal process in respect of words spoken or written and all acts
performed by them in their official capacity.
xxx
Section 21: In addition to the immunities and privileges specified in
sections 19 and 20, the executive head of each specialized agency,
including any official acting on his behalf during his absence from
duty, shall be accorded in respect of himself, his spouse and minor
children, the privileges and immunities, exemptions and facilities
accorded to diplomatic envoys, in accordance with international
law."
6. Charter of the ADB
"Article 50(1): The Bank shall enjoy immunity from every form of
legal process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or
to buy and sell or underwrite the sale of securities, in which cases
actions may be brought against the Bank in a court of competent
jurisdiction in the territory of a country in which the Bank has its
principal or a branch office, or has appointed an agent for the
purpose of accepting service or notice of process, or has issued or
guaranteed securities.
xxx
Article 55(i): All Governors, Directors, alternates, officers and
employees of the Bank, including experts performing missions for
the Bank shall be immune from legal process with respect to acts
performed by them in their official capacity, except when the Bank
waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal
process, except in cases arising out of or in connection with the
exercise of its powers to borrow money, to guarantee obligations, or
to buy and sell or underwrite the sale of securities, in which cases
actions may be brought against the Bank in a court of competent
jurisdiction in the Republic of the Philippines.
xxx

Section 44: Governors, other representatives of Members, Directors,
the President, Vice-President and executive officers as may be
agreed upon between the Government and the Bank shall enjoy,
during their stay in the Republic of the Philippines in connection
with their official duties with the Bank: (a) immunity from personal
arrest or detention and from seizure of their personal baggage; (b)
immunity from legal process of every kind in respect of words
spoken or written and all acts done by them in their official capacity;
and (c) in respect of other matters not covered in (a) and (b) above,
such other immunities, exemptions, privileges and facilities as are
enjoyed by members of diplomatic missions of comparable rank,
subject to corresponding conditions and obligations.
Section 45(a): Officers and staff of the Bank, including for the
purposes of this Article experts and consultants performing missions
for the Bank, shall enjoy x x x immunity from legal process with
respect to acts performed by them in their official capacity, except
when the Bank waives the immunity."
II
There are three major differences between diplomatic and
international immunities Firstly, one of the recognized limitations
of diplomatic immunity is that members of the diplomatic staff of a
mission may be appointed from among the nationals of the receiving
State only with the express consent of that State; apart from
inviolability and immunity from jurisdiction in respect of official
acts performed in the exercise of their functions, nationals enjoy only
such privileges and immunities as may be granted by the receiving
State. International immunities may be specially important in relation
to the State of which the official is a national. Secondly, the
immunity of a diplomatic agent from the jurisdiction of the receiving
State does not exempt him from the jurisdiction of the sending State;
in the case of international immunities there is no sending State and
an equivalent for the jurisdiction of the Sending State therefore has
to be found either in waiver of immunity or in some international
disciplinary or judicial procedure. Thirdly, the effective sanctions
which secure respect for diplomatic immunity are the principle of
reciprocity and the danger of retaliation by the aggrieved State;
international immunities enjoy no similar protection. [14]
The generally accepted principles which are now regarded as the
foundation of international immunities are contained in the ILO
Memorandum, which reduced them in three basic propositions,
namely: (1) that international institutions should have a status which
protects them against control or interference by any one government
in the performance of functions for the effective discharge of which
they are responsible to democratically constituted international
bodies in which all the nations concerned are represented; (2) that no
country should derive any financial advantage by levying fiscal
charges on common international funds; and (3) that the international
organization should, as a collectivity of States Members, be accorded
the facilities for the conduct of its official business customarily
extended to each other by its individual member States. The
thinking underlying these propositions is essentially institutional
in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional
independence necessary to free international institutions from
national control and to enable them to discharge their
responsibilities impartially on behalf of all their members. [15]
III
Positive international law has devised three methods of granting
privileges and immunities to the personnel of international
organizations. The first is by simple conventional stipulation, as
was the case in the Hague Conventions of 1899 and 1907.
The second is by internal legislation whereby the government of a
state, upon whose territory the international organization is to carry
out its functions, recognizes the international character of the
organization and grants, by unilateral measures, certain privileges
and immunities to better assure the successful functioning of the
organization and its personnel. In this situation, treaty obligation for
the state in question to grant concessions is lacking. Such was the
case with the Central Commission of the Rhine at Strasbourg and the
International Institute of Agriculture at Rome. The third is a
combination of the first two. In this third method, one finds a
conventional obligation to recognize a certain status of an
international organization and its personnel, but the status is
described in broad and general terms. The specific definition and
application of those general terms are determined by an accord
between the organization itself and the state wherein it is located.
This is the case with the League of Nations, the Permanent Court of
Justice, and the United Nations.[16]
The Asian Development Bank and its Personnel fall under this
third category.
There is connection between diplomatic privileges and immunities
and those extended to international officials. The connection consists
in the granting, by contractual provisions, of the relatively well-
established body of diplomatic privileges and immunities to
international functionaries. This connection is purely historical. Both
types of officials find the basis of their special status in the necessity
of retaining functional independence and freedom from interference
by the state of residence. However, the legal relationship between an
ambassador and the state to which he is accredited is entirely
different from the relationship between the international official and
those states upon whose territory he might carry out his functions. [17]
The privileges and immunities of diplomats and those of
international officials rest upon different legal foundations.
Whereas those immunities awarded to diplomatic agents are a right
of the sending stated based on customary international law, those
granted to international officials are based on treaty or conventional
law. Customary international law places no obligation on a state to
recognize a special status of an international official or to grant him
jurisdictional immunities. Such an obligation can only result from
specific treaty provisions.[18]
The special status of the diplomatic envoy is regulated by the
principle of reciprocity by which a state is free to treat the envoy of
another state as its envoys are treated by that state. The juridical
basis of the diplomat's position is firmly established in customary
international law. The diplomatic envoy is appointed by the sending
State but it has to make certain that the agreement of the receiving
State has been given for the person it proposes to accredit as head of
the mission to that State.[19]
The staff personnel of an international organization - the
international officials - assume a different position as regards
their special status. They are appointed or elected to their position
by the organization itself, or by a competent organ of it; they are
responsible to the organization and their official acts are imputed to
it. The juridical basis of their special position is found in
conventional law,[20] since there is no established basis of usage or
custom in the case of the international official. Moreover, the
relationship between an international organization and a member-
state does not admit of the principle of reciprocity, [21] for it is
contradictory to the basic principle of equality of states. An
international organization carries out functions in the interest of
every member state equally. The international official does not carry
out his functions in the interest of any state, but in serving the
organization he serves, indirectly, each state equally. He cannot be,
legally, the object of the operation of the principle of reciprocity
between states under such circumstances. It is contrary to the
principle of equality of states for one state member of an
international organization to assert a capacity to extract special
privileges for its nationals from other member states on the basis of a
status awarded by it to an international organization. It is upon this
principle of sovereign equality that international organizations are
built.
It follows from this same legal circumstance that a state called upon
to admit an official of an international organization does not have a
capacity to declare him persona non grata.
The functions of the diplomat and those of the international official
are quite different. Those of the diplomat are functions in the
national interest. The task of the ambassador is to represent his state,
and its specific interest, at the capital of another state. The functions
of the international official are carried out in the international
interest. He does not represent a state or the interest of any specific
state. He does not usually "represent" the organization in the true
sense of that term. His functions normally are administrative,
although they may be judicial or executive, but they are rarely
political or functions of representation, such as those of the diplomat.
There is a difference of degree as well as of kind. The interruption of
the activities of a diplomatic agent is likely to produce serious harm
to the purposes for which his immunities were granted. But the
interruption of the activities of the international official does not,
usually, cause serious dislocation of the functions of an international
secretariat.[22]
On the other hand, they are similar in the sense that acts performed
in an official capacity by either a diplomatic envoy or an
international official are not attributable to him as an individual but
are imputed to the entity he represents, the state in the case of the
diplomat, and the organization in the case of the international
official.[23]
IV
Looking back over 150 years of privileges and immunities granted to
the personnel of international organizations, it is clear that they were
accorded a wide scope of protection in the exercise of their functions
- the Rhine Treaty of 1804 between the German Empire and France
which provided "all the rights of neutrality" to persons employed in
regulating navigation in the international interest; The Treaty of
Berlin of 1878 which granted the European Commission of the
Danube "complete independence of territorial authorities" in the
exercise of its functions; The Covenant of the League which granted
"diplomatic immunities and privileges." Today, the age of the United
Nations finds the scope of protection narrowed. The current
tendency is to reduce privileges and immunities of personnel of
international organizations to a minimum. The tendency cannot
be considered as a lowering of the standard but rather as a
recognition that the problem on the privileges and immunities of
international officials is new. The solution to the problem presented
by the extension of diplomatic prerogatives to international
functionaries lies in the general reduction of the special position of
both types of agents in that the special status of each agent is granted
in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity and
because the proper functioning of the organization did not
require such extensive immunity for its officials. While the current
direction of the law seems to be to narrow the prerogatives of the
personnel of international organizations, the reverse is true with
respect to the prerogatives of the organizations themselves,
considered as legal entities. Historically, states have been more
generous in granting privileges and immunities to organizations
than they have to the personnel of these organizations. [24]
Thus, Section 2 of the General Convention on the Privileges and
Immunities of the United Nations states that the UN shall enjoy
immunity from every form of legal process except insofar as in any
particular case it has expressly waived its immunity. Section 4 of the
Convention on the Privileges and Immunities of the Specialized
Agencies likewise provides that the specialized agencies shall enjoy
immunity from every form of legal process subject to the same
exception. Finally, Article 50(1) of the ADB Charter and Section 5
of the Headquarters Agreement similarly provide that the bank shall
enjoy immunity from every form of legal process, except in cases
arising out of or in connection with the exercise of its powers to
borrow money, to guarantee obligations, or to buy and sell or
underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in
the UN General Convention has been interpreted to mean absolute
immunity from a state's jurisdiction to adjudicate or enforce its law
by legal process, and it is said that states have not sought to restrict
that immunity of the United Nations by interpretation or amendment.
Similar provisions are contained in the Special Agencies Convention
as well as in the ADB Charter and Headquarters Agreement. These
organizations were accorded privileges and immunities in their
charters by language similar to that applicable to the United Nations.
It is clear therefore that these organizations were intended to have
similar privileges and immunities.[25] From this, it can be easily
deduced that international organizations enjoy absolute immunity
similar to the diplomatic prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule.
The Foreign Sovereign Immunities Act was passed adopting the
"restrictive theory" limiting the immunity of states under
international law essentially to activities of a kind not carried on by
private persons. Then the International Organizations Immunities
Act came into effect which gives to designated international
organizations the same immunity from suit and every form of
judicial process as is enjoyed by foreign governments. This gives the
impression that the Foreign Sovereign Immunities Act has the effect
of applying the restrictive theory also to international organizations
generally. However, aside from the fact that there was no indication
in its legislative history that Congress contemplated that result, and
considering that the Convention on Privileges and Immunities of the
United Nations exempts the United Nations "from every form of
legal process," conflict with the United States obligations under the
Convention was sought to be avoided by interpreting the Foreign
Sovereign Immunities Act, and the restrictive theory, as not applying
to suits against the United Nations.[26]
On the other hand, international officials are governed by a
different rule. Section 18(a) of the General Convention on
Privileges and Immunities of the United Nations states that officials
of the United Nations shall be immune from legal process in respect
of words spoken or written and all acts performed by them in their
official capacity. The Convention on Specialized Agencies carries
exactly the same provision. The Charter of the ADB provides under
Article 55(i) that officers and employees of the bank shall be
immune from legal process with respect to acts performed by them in
their official capacity except when the Bank waives immunity.
Section 45 (a) of the ADB Headquarters Agreement accords the
same immunity to the officers and staff of the bank. There can be
no dispute that international officials are entitled to immunity
only with respect to acts performed in their official capacity,
unlike international organizations which enjoy absolute
immunity.
Clearly, the most important immunity to an international official, in
the discharge of his international functions, is immunity from local
jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the
jurisdiction of the local authorities for his official acts. Those acts are
not his, but are imputed to the organization, and without waiver the
local courts cannot hold him liable for them. In strict law, it would
seem that even the organization itself could have no right to
waive an official's immunity for his official acts. This permits
local authorities to assume jurisdiction over and individual for
an act which is not, in the wider sense of the term, his act at all.
It is the organization itself, as a juristic person, which should
waive its own immunity and appear in court, not the individual,
except insofar as he appears in the name of the organization.
Provisions for immunity from jurisdiction for official acts
appear, aside from the aforementioned treatises, in the
constitution of most modern international organizations. The
acceptance of the principle is sufficiently widespread to be
regarded as declaratory of international law.[27]
 V the Swiss Arrangement, and other current dominant instruments, it
What then is the status of the international official with respect
to his private acts?
Section 18 (a) of the General Convention has been interpreted to
mean that officials of the specified categories are denied
immunity from local jurisdiction for acts of their private life and
empowers local courts to assume jurisdiction in such cases without
the necessity of waiver.[28] It has earlier been mentioned that
historically, international officials were granted diplomatic privileges
and immunities and were thus considered immune for both private
and official acts. In practice, this wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because
the proper functioning of the organization did not require such
extensive immunity for its officials. Thus, the current status of the
law does not maintain that states grant jurisdictional immunity
to international officials for acts of their private lives. [29] This
much is explicit from the Charter and Headquarters Agreement
of the ADB which contain substantially similar provisions to that
of the General Convention.
VI
Who is competent to determine whether a given act is private or
official?  in the execution, or non-execution, of waiver, and since waiver is not
This is an entirely different question. In connection with this
question, the current tendency to narrow the scope of privileges and
immunities of international officials and representatives is most
apparent. Prior to the regime of the United Nations, the
determination of this question rested with the organization and its
decision was final. By the new formula, the state itself tends to
assume this competence. If the organization is dissatisfied with the
decision, under the provisions of the General Convention of the
United States, or the Special Convention for Specialized Agencies,
may appeal to an international tribunal by procedures outlined in
those instruments. Thus, the state assumes this competence in the
first instance. It means that, if a local court assumes jurisdiction over
an act without the necessity of waiver from the organization, the
determination of the nature of the act is made at the national level. [30]
It appears that the inclination is to place the competence to
determine the nature of an act as private or official in the courts
of the state concerned. That the prevalent notion seems to be to
leave to the local courts determination of whether or not a given act
is official or private does not necessarily mean that such
determination is final. If the United Nations questions the decision of
the Court, it may invoke proceedings for settlement of disputes
between the organization and the member states as provided in
Section 30 of the General Convention. Thus, the decision as to
whether a given act is official or private is made by the national
courts in the first instance, but it may be subjected to review in the
international level if questioned by the United Nations. [31]
A similar view is taken by Kunz, who writes that the "jurisdiction of
local courts without waiver for acts of private life empowers the
local courts to determine whether a certain act is an official act or an
act of private life," on the rationale that since the determination of
such question, if left in the hands of the organization, would consist
mentioned in connection with the provision granting immunities to
international officials, then the decision must rest with local courts.
[32]
Under the Third Restatement of the Law, it is suggested that since an
international official does not enjoy personal inviolability from arrest
or detention and has immunity only with respect to official acts, he is
subject to judicial or administrative process and must claim his
immunity in the proceedings by showing that the act in question was
an official act. Whether an act was performed in the individual's
official capacity is a question for the court in which a proceeding is
brought, but if the international organization disputes the court's
finding, the dispute between the organization and the state of the
forum is to be resolved by negotiation, by an agreed mode of
settlement or by advisory opinion of the International Court of
Justice.[33]
Recognizing the difficulty that by reason of the right of a national
court to assume jurisdiction over private acts without a waiver of
immunity, the determination of the official or private character of a
particular act may pass from international to national control, Jenks
proposes three ways of avoiding difficulty in the matter. The first
would be for a municipal court before which a question of the
official or private character of a particular act arose to accept as
conclusive in the matter any claim by the international organization
that the act was official in character, such a claim being regarded as
equivalent to a governmental claim that a particular act is an act of
State. Such a claim would be in effect a claim by the organization
that the proceedings against the official were a violation of the
jurisdictional immunity of the organization itself which is
unqualified and therefore not subject to delimitation in the discretion
of the municipal court. The second would be for a court to accept as
conclusive in the matter a statement by the executive government of
the country where the matter arises certifying the official character of
the act. The third would be to have recourse to the procedure of
international arbitration. Jenks opines that it is possible that none of
these three solutions would be applicable in all cases; the first might
be readily acceptable only in the clearest cases and the second is
available only if the executive government of the country where the
matter arises concurs in the view of the international organization
concerning the official character of the act. However, he surmises
that taken in combination, these various possibilities may afford the
elements of a solution to the problem.[34]
One final point. The international official's immunity for official acts
may be likened to a consular official's immunity from arrest,
detention, and criminal or civil process which is not absolute but
applies only to acts or omissions in the performance of his official
functions, in the absence of special agreement. Since a consular
officer is not immune from all legal process, he must respond to any
process and plead and prove immunity on the ground that the act or
omission underlying the process was in the performance of his
official functions. The issue has not been authoritatively determined,
but apparently the burden is on the consular officer to prove his
status as well as his exemption in the circumstances. In the United
States, the US Department of State generally has left it to the courts
to determine whether a particular act was within a consular officer's
official duties.[35]
Submissions
On the bases of the foregoing disquisitions, I submit the following
conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to
diplomatic immunity and hence his immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic
envoy is immune from criminal jurisdiction of the receiving State for
all acts, whether private or official, and hence he cannot be arrested,
prosecuted and punished for any offense he may commit, unless his
diplomatic immunity is waived.[36] On the other hand, officials of
international organizations enjoy "functional" immunities, that
is, only those necessary for the exercise of the functions of the
organization and the fulfillment of its purposes.[37]This is the
reason why the ADB Charter and Headquarters
Agreement explicitly grant immunity from legal process to bank
officers and employees only with respect to acts performed by them
in their official capacity, except when the Bank waives immunity. In
other words, officials and employees of the ADB are subject to
the jurisdiction of the local courts for their private acts,
notwithstanding the absence of a waiver of immunity.

Petitioner cannot also seek relief under the mantle of "immunity
from every form of legal process" accorded to ADB as an
international organization. The immunity of ADB is absolute
whereas the immunity of its officials and employees is restricted
only to official acts. This is in consonance with the current trend in
international law which seeks to narrow the scope of protection and
reduce the privileges and immunities granted to personnel of
international organizations, while at the same time aims to increase
the prerogatives of international organizations.
Second, considering that bank officials and employees are covered
by immunity only for their official acts, the necessary inference is
that the authority of the Department of Affairs, or even of the
ADB for that matter, to certify that they are entitled to immunity
is limited only to acts done in their official capacity. Stated
otherwise, it is not within the power of the DFA, as the agency in
charge of the executive department's foreign relations, nor the ADB,
as the international organization vested with the right to waive
immunity, to invoke immunity for private acts of bank official and
employees, since no such prerogative exists in the first place. If the
immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive
immunity for private acts of its officials and employees. The Charter
and the Headquarters Agreement are clear that the immunity can be
waived only with respect to official acts because this is only the
extent to which the privilege has been granted. One cannot waive the
right to a privilege which has never been granted or acquired.
Third, I choose to adopt the view that it is the local courts which
have jurisdiction to determine whether or not a given act is official or
private. While there is a dearth of cases on the matter under
Philippine jurisprudence, the issue is not entirely novel.
The case of M.H. Wylie, et al. vs. Rarang, et al.[38] concerns the
extent of immunity from suit of the officials of a United States Naval
Base inside the Philippine territory. Although a motion to dismiss
was filed by the defendants therein invoking their immunity from
suit pursuant to the RP-US Military Bases Agreement, the trial court
denied the same and, after trial, rendered a decision declaring that the
defendants are not entitled to immunity because the latter acted
beyond the scope of their official duties. The Court likewise applied
the ruling enunciated in the case of Chavez vs. Sandiganbayan[39] to
the effect that a mere invocation of the immunity clause does
not ipso facto result in the charges being automatically dropped.
While it is true that the Chavez case involved a public official, the
Court did not find any substantial reason why the same rule cannot
be made to apply to a US official assigned at the US Naval Station
located in the Philippines. In this case, it was the local courts which
ascertained whether the acts complained of were done in an official
or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,[40] a complaint for
annulment of contract of sale, reconveyance, specific performance
and damages was filed against petitioner. Petitioner moved to
dismiss on the ground of, among others, lack of jurisdiction based on
sovereign immunity from suit, which was denied by the trial court. A
motion for reconsideration, and subsequently, a "Motion for a
Hearing for the Sole Purpose of Establishing Factual Allegation for
Claim of Immunity as a Jurisdictional Defense" were filed by
petitioner. The trial court deferred resolution of said motions until
after trial on the merits. On certiorari, the Court there ruled on the
issue of petitioner's non-suability on the basis of the allegations made
in the pleadings filed by the parties. This is an implicit recognition of
the court's jurisdiction to ascertain the suability or non-suability of
the sovereign by assessing the facts of the case. The Court hastened
to add that when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, in some cases,
the defense of sovereign immunity was submitted directly to the
local courts by the respondents through their private counsels, or
where the foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to the
nature of the acts and transactions involved.  Supra note 5.
[10]

Finally, it appears from the records of this case that petitioner is a  ICMC vs. Calleja, supra note 2.
[11]

senior economist at ADB and as such he makes country project

profiles which will help the bank in deciding whether to lend money  John Kerry King, The Privileges and Immunities of the Personnel
[12]

or support a particular project to a particular country. [41] Petitioner
stands charged of grave slander for allegedly uttering defamatory
remarks against his secretary, the private complainant herein.
Considering that the immunity accorded to petitioner is limited only
to acts performed in his official capacity, it becomes necessary to
of International Organizations xiii (1949), citing: Suzanne
Basdevant, Les Fonctionnaires Internationaux (Paris: 1931), Chapter
1.
 ICMC vs. Calleja, et al., supra, citing Articles 57 and 63 of the
[13]

make a factual determination of whether or not the defamatory United Nations Charter.
utterances were made pursuant and in relation to his official
functions as a senior economist.  C. Wilfred Jenks, Contemporary Development in International
[14]

Immunities xxxvii (1961).
I vote to deny the motion for reconsideration.
 Id. at 17.
[15]

 J.K. King, supra note 12, at 81.

[16]

 48 SCRA 242 (1972).

[1]

 See id. at 255.
[17]

 190 SCRA 130 (1990).

[2]

 Id. at 25-26.
[18]

 238 SCRA 524 (1994).

[3]

 Article 4, Vienna Convention on Diplomatic Relations.

[19]

 241 SCRA 681 (1995).

[4]

 J.K. King, supra note 12, at xiii.

[20]

 262 SCRA 38 (1996).

[5]

 Id. at 27.
[21]

 Supra note 1.
[6]

 Id. at 254-257.
[22]

 Supra note 2.
[7]

 Id. at 103.
[23]

 Supra note 3.
[8]

 J.K. King, supra note 12, at 253-268.

[24]

 Supra note 4.
[9]
  1 Restatement of the Law Third 498-501.
[25]

 TSN, G.R. No. 125865, October 18, 2000, p. 11; Rollo, p. 393.

[41]

 Ibid.
[26]

 J.K. King, supra note 12, at 258-259.

[27]

Batas.org 
 Id. at 186.
[28]

 But see id. at 259. It is important to note that the submission of

[29]

international officials to local jurisdiction for private act is not

completely accepted in doctrine and theory. Jenks, in particular, has
argued for complete jurisdictional immunity, as has Hammarskjold.

 Id. at 260-261.
[30]

 Id. at 189.
[31]

 Joseph L. Kunz, Privileges and Immunities of International

[32]

Organizations 862 (1947), cited in J.K. King, id. at 254.

 1 Restatement of the Law Third 512.

[33]

 Jenks, supra note 14, at 117-118.

[34]

 1 Restatement of the Law Third 475-477.

[35]

 Salonga & Yap, Public International Law 108 (5th ed., 1992).

[36]

 1 id. at 511.
[37]

 209 SCRA 357 (1992).

[38]

 193 SCRA 282 (1991).

[39]

 Supra note 3.
[40]
 Supreme Court of the Philippines
406 Phil. 1  First, we take a view of the panorama of events that precipitated the
EN BANC
G.R. Nos. 146710-15, March 02, 2001
JOSEPH E. ESTRADA, PETITIONER, VS. ANIANO
DESIERTO, IN HIS CAPACITY AS OMBUDSMAN, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND
CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION,
INC., LEONARD DE VERA, DENNIS FUNA, ROMEO
CAPULONG AND ERNESTO B. FRANCISCO, JR.,
RESPONDENT.
G.R. NO. 146738
JOSEPH E. ESTRADA, PETITIONER, VS. GLORIA
MACAPAGAL-ARROYO, RESPONDENT.
DECISION
PUNO, J.:
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave while
respondent Gloria Macapagal-Arroyo claims she is the President.
The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties'
dispute. While the significant issues are many, the jugular issue
involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by
a plethora of problems that slowly but surely eroded his popularity.
His sharp descent from power started on October 4, 2000. Ilocos Sur
Governos, Luis "Chavit" Singson, a longtime friend of the petitioner,
went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.[1]
The exposé immediately ignited reactions of rage. The next day,
October 5, 2000, Senator Teofisto Guingona Jr, then the Senate
Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some
P220 million in jueteng money from Governor Singson from
November 1998 to August 2000. He also charged that the petitioner
took from Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred by then
Senate President Franklin Drilon, to the Blue Ribbon Committee
(then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint
investigation.[2]

The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo
Golez, decided to investigate the exposé of Governor Singson. On
the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On October
11, Archbishop Jaime Cardinal Sin issued a pastoral statement in
behalf of the Presbyteral Council of the Archdiocese of Manila,
asking petitioner to step down from the presidency as he had lost the
moral authority to govern.[3] Two days later or on October 13, the
Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.[4] Four days later, or on October 17,
former President Corazon C. Aquino also demanded that the
petitioner take the "supreme self-sacrifice" of resignation. [5] Former
President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services[6] and later asked for
petitioner's resignation.[7] However, petitioner strenuously held on to
his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned.
They were Jaime Augusto Zobel de Ayala, former Prime Minister
Cesar Virata, former Senator Vicente Paterno and Washington Sycip.
[8]
 On November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.[9] On November 3, Senate
President Franklin Drilon, and House Speaker Manuel Villar,
together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous
session on November 13, House Speaker Villar transmitted the
Articles of Impeachment[11] signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the
Senate. This caused political convulsions in both houses of Congress.
Senator Drilon was replaced by Senator Pimentel as Senate
President. Speaker Villar was unseated by Representative
Fuentabella.[12] On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.[13]
The political temperature rose despite the cold December. On
December 7, the impeachment trial started. [14] the battle royale was
fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and now
Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and
Secretary of Justice Estelito P. Mendoza, former City Fiscal of
Manila Jose Flamiano, former Deputy Speaker of the House Raul
Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun.
The day to day trial was covered by live TV and during its course
enjoyed the highest viewing rating. Its high and low points were the
constant conversational piece of the chattering classes. The dramatic
point of the December hearings was the testimony of Clarissa
Ocampo, senior vice president of Equitable-PCI Bank. She testified
that she was one foot away from petitioner Estrada when he affixed
the signature "Jose Velarde" on documents involving a P500 million
investment agreement with their bank on February 4, 2000. [15]
After the testimony of Ocampo, the impeachment trial was adjourned
in the spirit of Christmas. When it resumed on January 2, 2001, more
bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance
took the witness stand. He alleged that the petitioner jointly owned
BW Resources Corporation with Mr. Dante Tan who was facing
charges of insider trading.[16] Then came the fateful day of January
16, when by a vote of 11-10[17] the senator-judges ruled against the
opening of the second envelop which allegedly contained evidence
showing that petitioner held P3.3 billion in a secret bank account
under the name "Jose Velarde." The public and private prosecutors
walked out in protest of the ruling. In disgust, Senator Pimentel
resigned as Senate President.[18] The ruling made at 10:00 p.m. was
met by a spontaneous outburst of anger that hit the streets of the
metropolis. By midnight, thousands had assembled at the EDSA
Shrine and speeches full of sulphur were delivered against the
petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed
their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.[19] Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the
House of Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the motion. [20]
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding
lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to
symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion,
attracted more and more people.[21]
On January 19, the fall from power of the petitioner appeared
inevitable. At 1:20 p.m., the petitioner informed Executive Secretary
Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m.,
petitioner agreed to the holding of a snap election for President
where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado
and General Reyes, together with the chiefs of all the armed services
went to the EDSA Shrine.[22] In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of your
Armed Forces, the 130,000 strong members of the Armed Forces, we
wish to announce that we are withdrawing our support to this
government."[23] A little later, PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar stunning
announcement.[24] Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their
posts.[25] Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelop.[26] There was no turning back
the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first
round of negotiations for the peaceful and orderly transfer of power
started at Malacañang's Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive
Secretary Ramon Bagatsing, Political Adviser Angelito Banayo,
Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of
the presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary
Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.[27] Outside the palace, there was
a brief encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.[28] At 2:30 p.m.,
petitioner and his family hurriedly left Malacañang Palace. [29] He
issued the following press statement:[30]
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of
her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to
our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the
following letter:[31]
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30
a.m., on January 20.[32] Another copy was transmitted to Senate
President Pimentel on the same day although it was received only at
9:00 p.m.[33]
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers and duties of the Presidency. On
the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC - In re: Request of Vice President Gloria
Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice - Acting on the
urgent request of Vice-President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed to
the Chief Justice and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an administrative Political Advertising Ban and Fair Election Practices Act. [41]
matter, the court Resolved unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the On February 6, respondent Arroyo nominated Senator Teofisto
Chief Justice on January 20, 2001 to administer the oath of office to Guingona, Jr., as her Vice President.[42] the next day, February 7, the
Vice President Gloria Macapagal-Arroyo as President of the Senate adopted Resolution No. 82 confirming the nomination of
Philippines, at noon of January 20, 2001. Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmeña voted "yes" with reservations, citing
This resolution is without prejudice to the disposition of any as reason therefore the pending challenge on the legitimacy of
justiciable case that maybe filed by a proper party." respondent Arroyo's presidency before the Supreme Court. Senators
Teresa Aquino-Oreta and Robert Barbers were absent. [44] The House
Respondent Arroyo appointed members of her Cabinet as well as
of Representatives also approved Senator Guingona's nomination in
ambassadors and special envoys.[34] Recognition of respondent
Resolution No. 178.[45] Senator Guingona took his oath as Vice
Arroyo's government by foreign governments swiftly followed. On
President two (2) days later.[46]
January 23, in a reception or vin d' honneur at Malacañang, led by
the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
On February 7, the Senate passed Resolution No. 83 declaring that
more than a hundred foreign diplomats recognized the government of
the impeachment court is functus officio and has been terminated.
respondent Arroyo.[35] US President George W. Bush gave the [47]
 Senator Miriam Defensor-Santiago stated "for the record" that she
respondent a telephone call from the White House conveying US
voted against the closure of the impeachment court on the grounds
recognition of her government.[36]
that the Senate had failed to decide on the impeachment case and that
the resolution left open the question of whether Estrada was still
On January 24, Representative Feliciano Belmonte was elected new
qualified to run for another elective post.[48]
Speaker of the House of Representatives.[37] The House then passed
Resolution No. 175 "expressing the full support of the House of
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
Representatives to the administration of Her Excellency Gloria
public acceptance rating jacked up from 16% on January 20, 2001 to
Macapagal-Arroyo, President of the Philippines."[38] It also approved
38% on January 26, 2001.[49] In another survey conducted by the
Resolution No. 176 "expressing the support of the House of
ABS-CBN/SWS from February 2-7, 2001, results showed that 61%
Representatives to the assumption into office by Vice President
of the Filipinos nationwide accepted President Arroyo as
Gloria Macapagal-Arroyo as President of the Republic of the
replacement of petitioner Estrada. The survey also revealed that
Philippines, extending its congratulations and expressing its support
President Arroyo is accepted by 60% in Metro Manila, by also 60%
for her administration as a partner in the attainment of the nation's
in the balance of Luzon, by 71% in the Visayas, and 55% in
goals under the Constitution."[39]
Mindanao. Her trust rating increased to 52%. Her presidency is
accepted by majorities in all social classes:
On January 26, the respondent signed into law the Solid Waste
Management Act.[40] A few days later, she also signed into law the
58% in the ABC or middle-to-upper classes, 64% in the D or mass,
and 54% among the E's or very poor class.[50]
After his fall from the pedestal of power, the petitioner's legal
problems appeared in clusters. Several cases previously filed against
him in the Office of the Ombudsman were set in motion. These are:
(1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on
October 23, 2000 for bribery and graft and corruption; (2) OMB
Case No. 0-00-1754 filed by the Volunteers Against Crime and
Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the
Code of Conduct for government Employees, etc; (3) OMB Case No.
0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and
property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by
Leonard de Vera, et al., on November 28, 2000 for bribery, plunder,
indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B.
Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the
respondent Ombudsman to investigate the charges against the
petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew
Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
Emmanuel Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to
the aforementioned complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner
filed with this Court GR No. 146710-15, a petition for prohibition
with a prayer for a writ of preliminary injunction. It sought to enjoin
the respondent Ombudsman from "conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757
and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only
if legally warranted." Thru another counsel, petitioner, on February
6, filed GR No. 146738 for Quo Warranto. He prayed for judgment
"confirming petitioner to be the lawful and incumbent President of
the Republic of the Philippines temporarily unable to discharge the
duties of his office, and declaring respondent to have taken her oath
as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution." Acting on
GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On February 13,
the Court ordered the consolidation of GR Nos. 146710-15 and GR
No. 146738 and the filing of the respondents' comments "on or
before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-
hour hearing. Before the hearing, Chief Justice Davide, Jr., [51] and
Associate Justice Artemio Panganiban[52]recused themselves on
motion of petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter,
the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for
copies of resolution and press statement for "Gag Order" on
respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
"(1) to inform the parties that the Court did not issue a resolution on
January 20, 2001 declaring the office of the President vacant and that
neither did the Chief Justice issue a press statement justifying the
alleged resolution;
(2) to order the parties and especially their counsel who are officers
of the Court under pain of being cited for contempt to refrain from
making any comment or discussing in public the merits of the cases
at bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately
enjoining the respondent Ombudsman from resolving or deciding the
criminal cases pending investigation in his office against petitioner
Joseph E. Estrada and subject of the cases at bar, it appearing from
news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days
after the hearing held on February 15, 2001, which action will make
the cases at bar moot and academic."[53]
The parties filed their replies on February 24. On this date, the cases
at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I people power; that she has already taken her oath as the
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy,
whether petitioner Estrada is a President on leave while respondent
Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition
precedent for the criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on
the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases 
at bar involve a political question
Private respondents[54] raise the threshold issue that the cases at bar
pose a political question, and hence, are beyond the jurisdiction of
this Court to decide. They contend that shorn of its embroideries, the
cases at bar assail the "legitimacy of the Arroyo administration."
They stress that respondent Arroyo ascended the presidency through
14th President of the Republic; that she has exercised the powers of
the presidency and that she has been recognized by foreign
governments. They submit that these realities on ground constitute
the political thicket which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here
and abroad, have tried to lift the shroud on political question but its
exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests
on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills constitutional law.
[55]
 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr.
Justice Brennan in the 1962 case of Baker v. Carr,[56] viz:
"x x x Prominent on the surface on any case held to involve a
political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretions; or the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for non justiciability on the
ground of a political question's presence. The doctrine of which we
treat is one of `political questions', not of `political cases'."
In the Philippine setting, this Court has been continuously confronted
with cases calling for a firmer delineation of the inner and outer
perimeters of a political question.[57] Our leading case is Tanada v.
Cuenco,[58] where this Court, through former Chief Justice Roberto
Concepcion, held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch
of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great degree,
the 1987 Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial review of
this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government.[59] Heretofore, the judiciary has
focused on the "thou shalt not's" of the Constitution directed against
the exercise of its jurisdiction.[60] With the new provision, however,
courts are given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this
intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of
Article VII which empowers this Court in limpid language to "x x x
review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ (of habeas corpus) or the
extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C.
Aquino, et al.[61] and related cases[62] to support their thesis that since
the cases at bar involve the legitimacy of the government of
respondent Arroyo, ergo, they present a political question. A more
cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by
the sovereign people, albeita peaceful one. No less than the Freedom
Constitution[63] declared that the Aquino government was installed
through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended."
It is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for
that government automatically orbits out of the constitutional loop.
In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution.[64] In her oath, she
categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987
Constitution.
In fine, the legal distinction between EDSA People Power I and
EDSA People Power II is clear. EDSA I involves the exercise of
the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom
of speech and freedom of assembly to petition the government
for redress of grievances which only affected the office of the
President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of
judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession
of the Vice President as President are subject to judicial
review. EDSA I presented political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the
freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is
not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our 1898
revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the
Filipinos and included it as among "the reforms sine quibus
non."[65] The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that
Filipinos shall not be deprived (1) of the right to freely express his
ideas or opinions, orally or in writing, through the use of the press or
other similar means; (2) of the right of association for purposes of
human life and which are not contrary to public means; and (3) of the
right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the
instruction to the Second Philippine Commission of April 7, 1900
issued by President McKinley, it is specifically provided "that no law
shall be passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried
over in the Philippine Bill, the Act of Congress of July 1, 1902 and
the Jones Law, the Act of Congress of August 29, 1966.[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,
[67]
 and the 1973[68] Constitution. These rights are now safely
ensconced in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of
assembly to democracy is now self-evident. The reasons are well put
by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for
advancing knowledge and discovering truth; third, it is essential to
provide for participation in decision-making by all members of
society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious
balance between healthy cleavage and necessary
consensus."[69] In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the
progress of a society can take place without destroying the
society."[70] In Hague v. Committee for Industrial Organization,
[71]
 this function of free speech and assembly was echoed in
the amicus curiae brief filed by the Bill of Rights Committee of the
American Bar Association which emphasized that "the basis of the
right of assembly is the substitution of the expression of opinion and
belief by talk rather than force; and this means talk for all and by
all."[72] In the relatively recent case of Subayco v. Sandiganbayan,
[73]
 this Court similarly stressed that "... it should be clear even to
those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For
in a democracy, it is the people who count; those who are deaf to
their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political
questions. The principal issues for resolution require the proper
interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,[74] and section 8[75]of Article VII, and the
allocation of governmental powers under section 11[76] of Article VII.
The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,[77] the doctrine has been laid down
that " it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's
invocation of the doctrine of political is but a foray in the dark.
II
Whether or not the petitioner
resigned as President
We now slide to the second issue. None of the parties considered this
issue as posing a political question. Indeed, it involves a legal
question whose factual ingredient is determinable from the records of
the case and by resort to judicial notice. Petitioner denies he resigned
as President or that he suffers from a permanent disability. Hence, he
submits that the office of the President was not vacant when
respondent Arroyo took her oath as president.
The issue brings under the microscope of the meaning of section 8,
Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability, removal from office
or resignation of the President, the Vice President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then acts
as President until President or Vice President shall have been elected
and qualified.
x x x."
The issue then is whether the petitioner resigned as President or
should be considered resigned as of January 20, 2001 when
respondent took her oath as the 14th President of the Republic.
Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of
relinquishment.[78] The validity of a resignation is not governed by
any formal requirement as to form. It can be oral. It can be written. It
can be express. It can be implied. As long as the resignation is clear,
it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any
formal letter of resignation before he evacuated Malacañang Palace
in the Afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned
has to be determined from his acts and omissions before, during and
after January 20, 2001 or by the totality of prior, contemporaneous
and posterior facts and circumstantial evidence bearing a
material relevance on the issue.
Using this totality test, we hold that petitioner resigned as
President.
To appreciate the public pressure that led to the resignation of the
petitioner, it is important to follow the succession of events after the
exposé of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate
against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the signatures of
115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began
deserting him. Respondent Arroyo quit as Secretary of Social
Welfare. Senate President Drilon and Former Speaker Villar defected
with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call
for his resignation intensified. The call reached a new crescendo
when the eleven (11) members of the impeachment tribunal refused
to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine
was swarming with people crying for redress of their grievance.
Their number grew exponentially. Rallies and demonstration quickly
spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative
window on the state of mind of the petitioner. The window is
provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily
Inquirer.[79] The Angara Diary reveals that in morning of January
19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to crate an ad hoc committee to
handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled
Secretary Angara into his small office at the presidential residence
and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes)
(Ed, this is serious. Angelo has defected.)"[80] An hour later or at
2:30, p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The proposal
for a snap election for president in May where he would not be a
candidate is an indicium that petitioner had intended to give up
the presidency even at that time. At 3:00 p.m., General Reyes
joined the sea of EDSA demonstrators demanding the resignation of
the petitioner and dramatically announced the AFP's withdrawal of
support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel
to advise petitioner to consider the option of "dignified exit or
resignation."[81] Petitioner did nor disagree but listened intently.
[82]
 The sky was falling fast on the petitioner. At 9:30 p.m., Senator
Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that
petitioner would allowed to go abroad with enough funds to support
him and his family.[83] Significantly, the petitioner expressed no
objection to the suggestion for a graceful and dignified exit but
said he would never leave the country.[84] At 10:00 p.m., petitioner
revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I
would have five days to a week in the palace."[85] This is proof that
petitioner had reconciled himself to the reality that he had to
resign. His mind was already concerned with the five-day grace
period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President
Ramos called up Secretary Angara and requested, "Ed, magtulungan
tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful
and orderly transfer of power."[86] There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this
stage, the problem was already about a peaceful and orderly
transfer of power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the
guarantee of the safety of the petitioner and his family, and (3) the
agreement to open the second envelope to vindicate the name of the
petitioner.[87] Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of
this fact. According to Secretary Angara, at 2:30 a.m., he briefed the
petitioner on the three points and the following entry in the Angara
Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations.
The President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope to
clear his name.
If the envelope is opened, on Monday, he says, he will leave by
Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado
nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I
am very tired. I don't want any more of this - it's too painful. I'm
tired of the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."[88]
Again, this is high grade evidence that the petitioner has
resigned. The intent to resign is clear when he said "x x x Ayoko
na masyado nang masakit." " Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. - Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
`1. The President shall sign a resignation document within the
day, 20 January 2001, that will be effective on Wednesday,
24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for
the assumption of the new administration shall commence,
and persons designated by the Vice president to various
positions and offices of the government shall start their
orientation activities in coordination with the incumbent
officials concerned.
3. The Armed Forces of the Philippines and the Philippine
National Police shall function under the Vice President as
national military and police effective immediately.
4. The Armed Forces of the Philippines, through its Chief of
Staff, shall guarantee the security of the president and his
family as approved by the national military and police
 authority (Vice President).
5. It is to be noted that the Senate will open the second
envelope in connection with the alleged savings account of
the President in the Equitable PCI Bank in accordance with
the rules of the Senate, pursuant to the request to the
Senate President.'
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
`1. A transition will occur and take place on Wednesday, 24
January 2001, at which time President Joseph Ejercito Estrada
will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed
security and safety of their person and property throughout
their natural lifetimes. Likewise, President Estrada and his
families are guaranteed freedom from persecution or
retaliation from government and the private sector
throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the
Philippines (`AFP') through the Chief of Staff, as approved by the
national military and police authorities - Vice President (Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting
as an impeachment court will authorize the opening of the
second envelope in the impeachment trial as proof that the
subject savings account does not belong to President
Estrada.
4. During the five-day transition period between 20 January
2001 and 24 January 2001 (the "Transition Period"), the
incoming Cabinet members shall receive an appropriate
briefing from the outgoing Cabinet officials as part of the
orientation program.
During the Transition Period, the AFP and the Philippine National
Police (`PNP') shall function under Vice President (Macapagal) as
national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP
director general shall obtain all the necessary signatures as affixed to
this agreement and insure faithful implementation and observance
thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in `Annex A' heretofore
attached to this agreement.'"[89]
The second round of negotiation cements the reading that the
petitioner has resigned. It will be noted that during this second
round of negotiation, the resignation of the petitioner was again
treated as a given fact. The only unsettled points at that time
were the measures to be undertaken by the parties during and
after the transition period.
According to Secretary Angara, the draft agreement which was
premised on the resignation of the petitioner was further refined. It
was then signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara Diary
narrates the fateful events, viz:[90]  5.
"x x x
11:00 a.m. - Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can hear
the general clearing all these points with a group he is with. I hear
voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January
2001, which resignation shall be effective on 24 January 2001, on
which day the Vice President will assume the presidency of the
Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new
administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various
government positions shall start orientation activities with
incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and
his families throughout their natural lifetimes as approved by
the national military and police authority - Vice President.
4. The AFP and the Philippine National Police (`PNP') shall
function under the Vice President as national military and
police authorities.
Both parties request the impeachment court to open the
second envelope in the impeachment trial, the contents of
which shall be offered as proof that the subject savings
account does not belong to the President.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex `B' heretofore attached to this
agreement.
xxx
11:20 a.m. - I am all set to fax General Reyes and Nene Pimentel our
agreement, signed by our side and awaiting the signature of the
United Opposition.
And then it happens. General Reyes calls me to say that the Supreme
Court has decided that Gloria Macapagal-Arroyo is President and
will be sworn in at 12 noon.
`Bakit hindi naman kayo nakahintay? Paano na ang agreement
(Why couldn't you wait? What about the agreement)?' I asked.
Reyes answered: `Wala na, sir (It's over, sir).'
I asked him: `Di yung transition period, moot and academic na?'
And General Reyes answer: `Oo nga, i-delete na natin, sir (Yes,
we're deleting that part).'
Contrary to subsequent reports, I do not react and say that there was
a double cross.
But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic.
Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel
to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General
Reyes for the signatures of the other side, as it is important that the
provision on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon - Gloria takes her oath as President of the Republic of the
Philippines.
12:20 p.m. - The PSG distributes firearms to some people inside the
compound.
The President is having his final meal at the Presidential Residence
with the few friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line
of defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support
for the President.
1 p.m. - The President's personal staff is rushing to pack as many of
the Estrada family's personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to
release a final statement before leaving Malacañang.
The statement reads: `At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as president, I do not wish to be
a factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacañang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to
our people. I will not shrik from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!'"
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacañang. In the press
release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the
Republic albeit with the reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for
the sake of peace and in order to begin the healing process of our
nation. He did not say he was leaving the Palace due to any kind
of inability and that he was going to re-assume the presidency as
soon as the disability disappears; (3) he expressed his gratitude to
the people for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the people as
President; (4) he assured that he will not shirk from any future
challenge that may come ahead in the same service of our country.
Petitioner's reference is to a future challenge after occupying the
office of the president which he has given up; and (5) he called on
his supporters to join him in the promotion of a constructive national
spirit of reconciliation and solidarity. Certainly, the national spirit
of reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the
past tense.
It is, however, urged that the petitioner did not resign but only
took a temporary leave of absence due to his inability to
govern. In support of this thesis, the letter dated January 20, 2001 of
the petitioner sent to Senate President Pimentel and Speaker
Fuentebella is cited. Again, we refer to the said letter, viz:
"Sir
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting
President.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.[91] The
pleadings filed by the petitioner in the cases at bar did not discuss,
nay even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as
strange that the letter, despite its legal value, was never referred
to by the petitioner during the week-long crisis. To be sure, there
was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in
his press release that he was temporarily unable to govern and that he
was leaving the reins of government to respondent Arroyo for the
time being. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly showing
his resignation from the presidency, then the resignation must prevail
as a later act. If, however, it was prepared after the press release,
still, it commands scant legal significance. Petitioner's resignation
from the presidency cannot be the subject of a changing caprice
nor of a whimsical will especially if the resignation is the result of
his repudiation by the people. There is another reason why this
Court cannot give any legal significance to petitioner's letter and this
shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not
resign, he also argues that he could not resign as a matter of law.
He relies on section 12 of RA No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a
prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly
provide any comfort to the petitioner. RA No. 3019 originated from
Senate Bill No. 293. The original draft of the bill, when it was
submitted to the Senate, did not contain a provision similar to section
12 of the law as it now stands. However, in his sponsorship speech,
Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the
effect that no public official who is under prosecution for any act of
graft or corruption, or is under administrative investigation, shall be
allowed to voluntarily resign or retire."[92] During the period of
amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office -- No public official shall be allowed
to resign or retire pending an investigation, criminal or
administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on
bribery.
The separation or cessation of a public official from office shall not
be a bar to his prosecution under this Act for an offense committed
during his incumbency."[93]
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the provision and
insisted that the President's immunity should extend even after his
tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill
No. 293, was thereafter passed. Section 15 above became section 13
under the new bill, but the deliberations on this particular provision
mainly focused on the immunity of the President which was one of
the reasons for the veto of the original bill. There was hardly any
debate on the prohibition against the resignation or retirement of a
public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be
obvious. It is to prevent the act of resignation or retirement from
being used by a public official as a protective shield to stop the
investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the Anti-Graft
Law or prosecution for bribery under the Revised Penal Code.
To be sure, no person can be compelled to render service for that
would be a violation of his constitutional right.[94] A public official
has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such
resignation or retirement will not cause the dismissal of the criminal
or administrative proceedings against him. He cannot use his
resignation or retirement to avoid prosecution.
There is another reason why petitioner's contention should be
rejected. In the cases at bar, the records show that when petitioner
resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-
1756, 0-00-1757 and 0-00-1758. While these cases have been filed,
the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the
sitting President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the Ombudsman
lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot
therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any
insuperable legal obstacle like the immunity from suit of a sitting
President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars
him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even
assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the
process already broke down when a majority of the senator-judges
voted against the opening of the second envelope, the public and
private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings
were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.
III
Whether or not the petitioner  shall immediately assume the powers and duties of the office as
is only temporarily unable to  Acting President.
act as President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of
petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no
power to adjudge the inability of the petitioner to discharge the
powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of Article
VII."[95] This contention is the centerpiece of petitioner's stance that
he is a President on leave and respondent Arroyo is only an Acting
President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmit to the President of the
Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Congress shall
decide the issue. For that purpose, the Congress shall convene, if it is
not in session, within forty-eight hours, in accordance with its rules
and without need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session within twelve days after it is required
to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President;
otherwise, the President shall continue exercising the powers and
duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming
inability to the Senate President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office
as President on January 20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed
on January 24, 2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House
Resolution No. 176[97]which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE
OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE
BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
EXTENDING ITS CONGRATULATIONS AND EXPRESSING
ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER
IN THE ATTAINMENT OF THE NATION'S GOALS UNDER
THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on
the ability of former President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the Philippine National
Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme
Court, Vice President Gloria Macapagal-Arroyo was sworn in as
President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international
community had extended their recognition to Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo
has espoused a policy of national healing and reconciliation with
justice for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government
cannot be achieved if it is divided, thus by reason of the
constitutional duty of the House of Representatives as an institution
and that of the individual members thereof of fealty to the supreme
will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove
all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives
to exert all efforts to unify the nation, to eliminate fractious tension,
to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of
the various segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the
attainment of all the foregoing, for the House of Representatives to
extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to
the assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a
partner in the attainment of the Nation's goals under the Constitution.
Adopted,

(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives
passed House Resolution No. 178[98] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL-ARROYO'S NOMINATION OF SENATOR
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President
due to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution,
the President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo
has nominated Senate Minority Leader Teofisto T. Guingona Jr., to
the position of Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant
endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines - qualities
which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of
Representatives, That the House of Representatives confirms the
nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability,
some twelve (12) members of the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation
an opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome
challenges the nation needs unity of purpose and resolute cohesive
resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for
vital legislative measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new
government of President Gloria Macapagal-Arroyo and resolve to
discharge our duties to attain desired changes and overcome the
nation's challenges."[99]
On February 7, the Senate also passed Senate Resolution No.
82[100] which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL-ARROYO'S NOMINATION OF SEN. TEOFISTO
T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES
WHEREAS, there is it vacancy in the Office of the Vice-President
due to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution,
the President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo
has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to
the position of Vice President of the Republic of the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
endowed with integrity, competence, and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice. Senator of the land - which qualities
merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the
nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the
Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate
Resolution No. 83[101] which states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT
COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the
Impeachment Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of
Monday, January 15, Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court
including the `second envelope' be transferred to the Archives of the
Senate for proper safekeeping and preservation in accordance with
the Rules of the Senate. Disposition and retrieval thereof shall be
made only upon written approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of
this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No.
84 "certifying to the existence of a vacancy in the Senate and calling
on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the
senatorial candidate garnering the thirteenth (13th) highest number of
votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr."
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet, without any recognition from any sector of government, and
without any support from the Armed Forces of the Philippines and
the Philippine National Police, the petitioner continues to claim that
his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada is no longer
temporary. Congress has clearly rejected petitioner's claim of
inability.
The question is whether this Court has jurisdiction to review the
claim of temporary inability of petitioner Estrada and
thereafter revise the decision of both Houses
ofCongress recognizing respondent Arroyo as President of the
Philippines. Following Tañada v. Cuenco,[102] we hold that this
Court cannot exercise its judicial power for this is an issue "in regard
to which full discretionary authority has been delegated to the
Legislative x x x branch of the government." Or to use the language
in Baker vs. Carr,[103] there is a "textually demonstrable
constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable
standards for resolving it." Clearly, the Court cannot pass upon
petitioner's claim of inability to discharge the powers and duties of
the presidency. The question is political in nature and addressed
solely to Congress by constitutional fiat. It is a political issue
which cannot be decided by this Court without transgressing the
principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he
cannot successfully claim that he is a President on leave on the
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of
government cannot be reviewed by this Court.
 IV
Whether or not the petitioner enjoys immunity 
from suit. Assuming he enjoys immunity, the 
extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed
against him before the respondent Ombudsman should be prohibited
because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history
on executive immunity will be most enlightening. The doctrine of
executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,
[104]
 the respondent Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the Philippine Islands, J.E.
Harding and C.R. Trowbridge, Chief of Police and Chief of the
Secret Service of the City of Manila, respectively, for damages for
allegedly conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice Johnson, held:
"The principle of nonliability, as herein enunciated, does not mean
that the judiciary has no authority to touch the acts of the Governor-
General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk
defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean,
either, that a person injured by the executive authority by an act
unjustifiable under the law has no remedy, but must submit in
silence. On the contrary, it means, simply, that the Governor-
General, like the judges of the courts and the members of the
Legislature, may not be personally mulcted in civil damages for the
consequences of an act executed in the performance of his official
duties. The judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants it, declare an
act of the Governor-General illegal and void and place as nearly as
possible in status quo any person who has been deprived his liberty
or his property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or
property rights have been invaded, even by the highest authority of
the state. The thing which the judiciary can not do is mulct the
Governor-General personally in damages which result from the
performance of his official duty, any more that it can a member of
the Philippine Commission or the Philippine Assembly. Public
policy forbids it.
Neither does this principle of nonliability mean that the chief
executive may not be personally sued at all in relation to acts which
he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that portion
which touched the liability of judges and drew an analogy between
such liability and that of the Governor-General, that the latter is
liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercise discretion in
determining whether or not he had the right to act. What is held here
is that he will be protected from personal liability for damages not
only when he acts within his authority, but also when he is without
authority, provided he actually used discretion and judgment, that is,
the judicial faculty, in determining whether he had authority to act or
not. In other words, he is entitled to protection in determining the
question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men,
reasonably qualified for that position, might honestly differ; but he is
not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, he
acts, not as Governor-General but as a private individual, and, as
such, must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief
Executive was not granted immunity from suit, viz: "x x x. Action
upon important matters of state delayed; the time and substance of
the chief executive spent in wrangling litigation; disrespect
engendered for the person of one of the highest officials of the State
and for the office he occupies; a tendency to unrest and disorder;
resulting in a way, in a distrust as to the integrity of government
itself."[105]
Our 1935 Constitution took effect but it did not contain any
specific provision on executive immunity. Then came the tumult of
the martial law years under the late President Ferdinand E. Marcos
and the 1973 Constitution was born. In 1981, it was amended
and one of the amendments involved executive immunity. Section
17, Article VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him
or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution."
In his second Vicente G. Sinco Professional Chair Lecture entitled, "
Presidential Immunity And All The King's Men: The Law Of
Privilege As A Defense To Actions For Damages,"[106] petitioner's
learned counsel, former Dean of the UP college of Law, Atty.
Pacifico Agabin, brightlined the modifications effected by this
constitutional amendment on the existing law on executive privilege.
To quote his disquisition:
"In the Philippines, though, we sought to do the Americans one
better by enlarging and fortifying the absolute immunity concept.
First, we extended it to shield the President not only from civil
claims but also from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of the President
outside the scope of official duties. And third, we broadened its
coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who
acted upon orders of the President. It can be said that at that point
most of us were suffering from AIDS (or absolute immunity defense
syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal
of this Marcosian concept of executive immunity in the 1973
Constitution. The move was led by then Member of Parliament,
now Secretary of Finance, Alberto Romulo, who argued that
the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He
denounced the immunity as a return to the anachronism "the king can
do no wrong."[107] The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When
the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas, viz:[108] 
"Mr. Suarez. Thank you.
The last question is with reference to the committee's omitting in the
draft proposal the immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did very well in striking
out this second sentence, at the very least, of the original provision
on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his the object of a criminal prosecution. To be sure, the debates in the
tenure, considering that if we do not provide him that kind of an Constitutional Commission make it clear that when impeachment
immunity, he might be spending all his time facing litigations, as the proceedings have become moot due to the resignation of the
President-in-exile in Hawaii is now facing litigations almost daily? President, the proper criminal and civil cases may already be filed
against him, viz:[110] 
Fr. Bernas. The reason for the omission is that we consider it
"x x x
understood in present jurisprudence that during his tenure he is
immune from suit.
Mr. Aquino. On another point, if an impeachment proceeding has
been filed against the President, for example, and the President
Mr. Suarez. So there is no need to express it here.
resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the
Fr. Bernas. There is no need. It was that way before. The only
impeachment proceeding? Will it be necessarily dropped?
innovation made by the 1973 Constitution was to make that explicit
and to add other things.
Mr. Romulo. If we decide the purpose of impeachment to remove
one from office, then his resignation would render the case moot and
Mr. Suarez. On that understanding, I will not press for any more
academic. However, as the provision says, the criminal and civil
query, Madam President.
aspects of it may continue in the ordinary courts."
I thank the Commissioner for the clarification." This is in accord with our ruling in In re: Saturnino
Bermudez[111]that "incumbent Presidents are immune from suit or
We shall now rule on the contentions of petitioner in the light of this
from being brought to court during the period of their incumbency
history. We reject his argument that he cannot be prosecuted for the
and tenure" but not beyond. Considering the peculiar circumstance
reason that he must first be convicted in the impeachment
that the impeachment process against the petitioner has been aborted
proceedings. The impeachment trial of petitioner Estrada was
and thereafter he lost the presidency, petitioner Estrada cannot
aborted by the walkout of the prosecutors and by the events that led
demand as a condition sine qua non to his criminal prosecution
to his loss of the presidency. Indeed, on February 7, 2001, the Senate
before the Ombudsman that he be convicted in the impeachment
passed Senate Resolution No. 83 "Recognizing that the Impeachment
proceedings. His reliance in the case of Lecaroz vs.
Court is Functus Officio."[109] Since the Impeachment Court is
Sandiganbayan[112] and related cases[113]are inapropos for they have a
now functus officio, it is untenable for petitioner to demand that he
different factual milieu.
should first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar against his
We now come to the scope of immunity that can be claimed by
prosecution. Such a submission has nothing to commend itself for it
petitioner as a non-sitting President. The cases filed against
will place him in a better situation than a non-sitting President who
petitioner Estrada are criminal in character. They involve plunder,
has not been subjected to impeachment proceedings and yet can be
bribery and graft and corruption. By no stretch of the imagination
can these crimes, especially plunder which carries the death penalty,
be covered by the allege mantle of immunity of a non-sitting
president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that
immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not
acts of the State and the officer who acts illegally is not acting as
such but stands in the same footing as any other trespasser.
[114]
 Indeed, a critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or
impairs the vindication of a right. In the 1974 case of US v.
Nixon,[115] US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to
his conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct
justice and other offenses which were committed in a burglary of the
Democratic National Headquarters in Washington's Watergate Hotel
during the 1972 presidential campaign. President Nixon himself was
named an unindicted co-conspirator. President Nixon moved to
quash the subpoena on the ground, among others, that the President
was not subject to judicial process and that he should first be
impeached and removed from office before he could be made
amenable to judicial proceedings. The claim was rejected by the US
Supreme Court. It concluded that "when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial
is based only on the generalized interest in confidentiality, it cannot
prevail over the fundamental demands of due process of law in the
fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,[116] the US Supreme Court further held that the immunity
of the President from civil damages covers only "official
acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones[117] where it held that the
US President's immunity from suits for money damages arising out
of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to
stretch the scope of executive immunity in our jurisdiction. One
of the great themes of the 1987 Constitution is that a public office is
a public trust.[118] It declared as a state policy that "(t)he State shall
maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption." [119] It ordained
that "(p)ublic officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives."[120] It set the rule that "(t)he right of the State to
recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall
not be barred by prescription, laches or estoppel."[121] It maintained
the Sandiganbayan as an anti-graft court.[122] It created the office of
the Ombudsman and endowed it with enormous powers, among
which is to "(i)nvestigate on its own, or on complaint by any person,
any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient."[123] The Office of the Ombudsman was also
given fiscal autonomy.[124] These constitutional policies will be
devalued if we sustain petitioner's claim that a non-sitting
president enjoys immunity from suit for criminal acts committed
during his incumbency.
V
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against
him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is
all set to file the criminal cases in violation of his right to due
process.
There are two (2) principal legal and philosophical schools of
thought on how to deal with the rain of unrestrained publicity during
the investigation and trial of high profile cases. [125]The British
approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal
trials when the right of an accused to fair trial suffers a threat.
[126]
 The American approach is different. US courts assume
a skeptical approach about the potential effect of pervasive publicity
on the right of an accused to a fair trial. They have developed
different strains of tests to resolve this issue, i.e., substantial
probability of irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has been
raised in this Court to stop the trials or annul convictions in high
profile criminal cases.[127] In People vs. Teehankee, Jr.,[128] later
reiterated in the case of Larranaga vs. Court of Appeals, et al.,
[129]
 we laid down the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to
impartial trial due to prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we now
rule that the right of an accused to a fair trial is not incompatible to
a free press. To be sure, responsible reporting enhances an accused's
right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field x x x. The press does
not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused
to fair trial. The mere fact that the trial of appellant was given a day-
to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members
of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication
system brings news as they happen straight to our breakfast tables
and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair
and impartial judge is not that of a hermit who is out of touch with
the world. We have not installed the jury system whose members are
overly protected from publicity lest they lose their impartiality. x x x
x x x x x x. Our judges are learned in the law and trained to disregard
off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts
does not per se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the
part of the trial judge due to the barrage of publicity that
characterized the investigation and trial of the case. In Martelino, et
al. v. Alejandro, et al., we rejected this standard of possibility of
prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation
and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the
records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the
pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable if change even by
evidence presented during the trial. Appellant has the burden to
prove this actual bias and he has not discharged the burden."
We expounded further on this doctrine in the subsequent case
of Webb vs. Hon. Raul de Leon, etc.[130] and its companion
cases. viz.:
"Again, petitioners raise the effect of prejudicial publicity on their
right to due process while undergoing preliminary investigation. We
find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary
investigation.
xxx
The democratic settings, media coverage of trials of sensational
cases cannot be avoided and oftentimes, its excessiveness has been
aggravated by kinetic developments in the telecommunications
industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of
the case at bar. Our daily diet of facts and fiction about the case
continues unabated even today. Commentators still bombard the
public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case - the NBI, the
respondents, their lawyers and their sympathizers - have participated
in this media blitz. The possibility of media abuses and their threat to
a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and public. Inn the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was wisely held:
`x x x
(a) The historical evidence of the evolution of the criminal trial in
Anglo-American justice demonstrates conclusively that the time this
Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions
based on secret bias or partiality. In addition, the significant
community therapeutic value of public trials was recognized: when a
shocking crime occurs, a community reaction of outrage and public
protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work effectively, it is
important that society's criminal process `satisfy the appearance of
justice,' Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct
11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be concluded that
a presumption of openness inheres in the very nature of a criminal
trial under this Nation's system of justice, Cf., e.g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly
guaranteed by the First Amendment, share a common core purpose
of assuring freedom of communication on matters relating to the
functioning of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read as protecting
the right of everyone to attend trials so as give meaning to those
explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open
to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been
regarded not only as an independent right but also as a catalyst to
augment the free exercise of the other First Amendment rights with
which it was deliberately linked by the draftsmen. A trial courtroom
is a public place where the people generally - and representatives of
the media - have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of
what takes place.
(c) Even though the Constitution contains no provision which by its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.'
Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his
due process right to fair trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that attended
the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed,
their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time
the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough
evidence to warrant this Court to enjoin the preliminary
investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his
burden of proof.[131] He needs to show more weighty social science
evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special
panel of prosecutors in the office of the respondent Ombudsman. No
allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him.
Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures
directed at him by the mobs."[132] News reports have also been quoted
to establish that the respondent Ombudsman has already prejudged
the cases of the petitioner[133]and it is postulated that the prosecutors
investigating the petitioner will be influenced by this bias of their
superior.
Again, we hold that the evidence proffered by the petitioner
is insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to
his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman
flows to his subordinates. In truth, our Revised Rules of Criminal
Procedure, give investigating prosecutors the independence to make
their own findings and recommendations albeit they are reviewable
by their superiors.[134] They can be reversed but they can not be
compelled to change their recommendations nor can they be
compelled to prosecute cases which they believe deserve dismissal.
In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman
resolves to file the cases against the petitioner and the latter believes
that the finding of probable cause against him is the result of bias, he
still has the remedy of assailing it before the proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to a
new stage - - - the Office of the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more threatening. It is
the sacred duty of the respondent Ombudsman to balance the right of
the State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the "most
fundamental of all freedoms."[135] To be sure, the duty of a prosecutor
is more to do justice and less to prosecute. His is the obligation to
insure that the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against what
Lord Bryce calls "the impatient vehemence of the majority." Rights
in a democracy are not decided by the mob whose judgment is
dictated by rage and not by reason. Nor are rights necessarily
resolved by the power of number for in a democracy, the dogmatism
of the majority is not and should never be the definition of the rule of
law. If democracy has proved to be the best form of government, it is
because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to man's progress from the
cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada
challenging the respondent Gloria Macapagal-Arroyo as the de
jure 14th President of the Republic are DISMISSED.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr.,
JJ., concur.
Davide, Jr., C.J., no part in view of expression given in the open
court and in the extended explanation.
Vitug, J., see concurring opinion.
Kapunan, J., concur in the result and reserve the right to write a
separate opinion.
Mendoza, J., see concurring opinion.
Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000
mention in footnote 51 of ponencia.
Pardo, J., in the result; believes that petitioner was constrained to
resign and reserve his vote in immunity from suit
Buena, J., in the result.
Ynares-Santiago, J., concur in the result and reserve the filing of a
separate opinion.
Sandoval-Gutierrez, J., concur in the result and reserve the right to
write a separate opinion.  Ibid., December 23, 2000, pp. A1 and A19.
[15]

 Ibid., January 12, 2001, p. A1.

[16]

 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

[1]  Those who voted "yes" to open the envelop were: Senators
[17]

Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda, Magsaysay,

 PDI, October 6, 2000, pp. A1 and A18.
[2] Flavier, Biazon, Osmeña III. Those who vote "no" were Senators
Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng,
 Ibid., October 12, 2000, pp. A1 and A17.
[3] Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad.

 Ibid., October 14, 2000, p. A1.

[4]  Philippine Star, January 17, 2001, p. 1.
[18]

 Ibid., October 18, 2000, p. A1.

[5]  Ibid., January 18, 2001, p. 4.
[19]

 Ibid., October 13, 2000, pp. A1 and A21.

[6]  Ibid., p. 1.
[20]

 Ibid., October 26, 2000, p. A1.

[7]  Ibid., January 19, 2001, pp. 1 and 8.
[21]

 Ibid., November 2, 2000, p. A1.

[8]  "Erap's Final Hours Told" by Edgardo Angara, (hereinafter
[22]

referred to as "Angara Diary"), PDI, February 4, 2001, p. A16.

 Ibid., November 3, 2000, p. A1.
[9]

 Philippine Star, January 20, 2001, p. 4.

[23]

[10]
 Ibid., November 4, 2000, p. A1.
 PDI, February 4, 2001, p. A16.
[24]

 The complaint for impeachement was based on the following

[11]

grounds: bribery, graft and corruption, betrayal of public trust, and  Philippine Star, January 20, 2001, pp. 1 and 11.
[25]

culpable violation of the Cnstitution.

 Ibid., January 20, 2001, p. 3.
[26]

[12]
 Ibid., November 14, 2000, p. A1.
 PDI, February 5, 2001, pp. A1 and A6.
[27]

[13]
 Ibid., November 21, 2000, p. A1.
 Philippine Star, January 21, 2001, p. 1.
[28]

[14]
 Ibid., December 8, 2000, p. A1.
  PDI, February 6, 2001, p. A12.
[29]
 PDI, February 8, 2001, pp. A1 & A19.
[44]

 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-

[30]
 Annex F, id.; ibid., p. 297.
[45]

15, p. 288.
 PDI, February 10, 2001, p. A2.
[46]

 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

[31]

 Annex G., id.; ibid., p. 299.

[47]

 Ibid.
[32]

 PDI, February 8, 2001, p. A19.

[48]

 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

[33]

 Philippine Star, February 3, 2001, p. 4.

[49]

 Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1

[34]

and 4; January 24, 2001, p. 3; PDI, January 25, 2001, pp. A1 and  "Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila
[50]

A15. Standard, February 16, 2001, p. 14.

 Philippine Star, January 24, 2001, p. 1.

[35]
 See The Chief Justice's Extended Explanation for His Voluntary
[51]

Inhibition; Rollo, GR Nos. 146710-15, pp. 525-527.

 PDI, January 25, 2001, p. 1.
[36]

 See Letter of Inhibition of Associate Justice Panganiban; Rollo,

[52]

 Ibid., p. 2.
[37]
GR No. 146738, pp. 120-125.

 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15

[38]
 Rollo, G.R. No. 146738, p. 134.
[53]

p. 290.
 Leonard de Vera and Dennis Funa; see their Memorandum, pp.
[54]

 Annex D, id; ibid., p. 292.

[39]
16-27; Rollo, GR Nos. 146710-15, Vol. III, pp. 809-820.

 PDI, January 27, 2001, p. 1.

[40]
 Gunther and Sullivan, Constitutional Law, 13th ed., pp. 45-46.
[55]

 PDI, February 13, 2001, p. A2.

[41]
 369 US 186, 82 S.Ct. 691, 7 L ed 2d 663, 686 (1962).
[56]

 Philippine Star, February 13, 2001, p. A2.

[42]
 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al.,
[57]

GR No. 141284, 15 August 2000; Miranda v. Aguirre, 314 SCRA

 Annex E, id.; ibid., p. 295.
[43]
603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v.
Secretary of the Department of Energy, 281 SCRA 330 (1997);
Marcos v. Manglapus, 177 SCRA 668 (1989); Gonzales v. (Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15
COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 Vol. II, p. 332)
(1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77
 See "Filipinas Despues de Cien Años" (The Philippines a Century
[65]
Phil 192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).
Hence), p. 62.
 103 Phil 1051, 1068 (1957).
[58]
 The guaranty was taken from Amendment I of the US
[66]

Constitution which provides: "Congress shall make no law

 Section 1, Article VIII, 1987 Constitution.
[59]
respecting an establishment of religion or prohibiting the free
exercise thereof of abridging the freedom of speech, or of the press;
 Note that the early treatises on Constitutional Law are discourses
[60]
or the right of the people peaceably to assemble, and to petition the
on limitations of power typical of which is, Cooley's Constitutional
Government for a redress of grievance."
Limitations.
 See section 8, Article IV.
[67]
 Joint Resolution, Lawyers League for a Better Philippines and/or
[61]

Oliver A. Lozano v. Pres. Corazon C. Aquino, et al., GR No. 73748;

 See section 9, Article IV.
[68]
People's Crusade for Supremacy of the Constitution, etc. v. Mrs.
Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
 Emerson, The System of Freedom of Expression, 1970 ed., p. 6,
[69]
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.
et seq.
 Letter of Associate Justice Reynato S. Puno, 210 SCRA 597
[62]
 Ibid., See also concurring opinion of Justice Branders in Whitney
[70]
[1992].
v. California (74 US 357, 375-76) where he said" ... the greatest
menace to freedom is an inert people..."
 Proclamation No. 3. (1986)
[63]

 307 US 496 (1939).

[71]
 It states:
[64]

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do  Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-
[72]

solemnly swear that I will faithfully and conscientiously fulfill my 415, 421.
duties as President of the Philippines, preserve and defend its
Constitution, execute its laws, do justice to every man, and  260 SCRA 798 (1996).
[73]

consecrate myself to the service of the nation.

 Section 1, Article II of the 1987 Constitution reads:
[74]

So help me God.
"The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them."  In the Angara Diary which appeared in the PDI issue of February
[91]

5, 2001, Secretary Angara stated that the letter came from Asst.
 Infra at 26.
[75]
Secretary Boying Remulla; that he and Political Adviser Banayo
opposed it; and that PMS head Macel Fernandez believed that the
 Infra at 41.
[76]
petitioner would not sign the letter.

 1 Cranch (5 US) 137, 2 L ed 60 (1803).

[77]
 Congressional Record, 4th Congress, 2nd Session, March 4, 1959,
[92]

pp. 603-604.
 Gonzales v. Hernandez, 2 SCRA 228 (1961).
[78]

 Id., May 9, 1959, p. 1988.

[93]

 See its February 4, 5, and 6, 2001 issues.

[79]

 Section 18 (2), Article III of the 1987 Constitution provides: "No

[94]

 PDI, February 4, 2001, p. A1.

[80]
involuntary servitude in any form shall exist except as a punishment
for a crime whereof the party shall have been duly convicted."
 Ibid.
[81]

 Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.

[95]

 Ibid.
[82]

 House Resolution No. 175, 11th Congress, 3rd Session (2001),

[96]

 Ibid.
[83]
reads:
"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE
 Ibid.
[84]
HOUSE OF REPRESENTATIVES TO THE ADMINISTRATION
OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO,
 Ibid.
[85]
PRESIDENT OF THE PHILIPPINES
 PDI, February 5, 2001, p. A1.
[86]
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-
Arroyo was sworn in as the 14th President of the Philippines;
 Ibid., p. A-1.
[87]

WHEREAS, her ascension to the highest office of the land under the
 Ibid.
[88]
dictum, "the voice of the people is the voice of God" establishes the
basis of her mandate on integrity and morality in government;
 PDI, February 5, 2001, p. A6.
[89]

WHEREAS, the House of Representatives joins the church, youth,

 PDI, February 6, 2001, p. A1.
[90]
labor and business sectors in fully supporting the President's strong  103 Phil 1051, 1067 (1957).
[102]

determination to succeed;
 Baker vs. Carr, supra at 686 headnote 29.
[103]

WHEREAS, the House of representative is likewise one with the

people in supporting President Gloria Macapagal-Arroyo's call to  16 Phil 534 (1910).
[104]

start the healing and cleansing process for a divided nation in order
to `build an edifice of peace, progress and economic stability' for the  The logical basis for executive immunity from suit was originally
[105]

country: Now, therefore, be it Resolved by the House of founded upon the idea that the "King can do no wrong." [R.J.
Representatives, To express its full support to the administration of Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303
Her Excellency, Gloria Macapagal-Arroyo, 14th President of the (1959)]. The concept thrived at the time of absolute monarchies in
Philippines. medieval England when it was generally accepted that the seat of
sovereignty and governmental power resides in the throne. During
Adopted, that historical juncture, it was believed that allowing the King to be
sued in his court was a contradiction to the sovereignty of the King.
(Sgd.) FELICIANO BELMONTE JR.
Speaker With the development of democratic thoughts and institutions, this
kind of rationalization eventually lost its moral force. In the United
This Resolution was adopted by House of Representatives on States, for example, the common law maxim regarding the King's
January 24, 2001. infallibility had limited reception among the framers of the
Constitution. [J. Long, How to Sue the President: A Proposal for
(Sgd.) Roberto P. Nazareno Legislation Establishing the Extent of Presidential Immunity, 30
Secretary General" VAL. U.L. REV. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times,
 11th Congress, 3rd Session (2001).
[97] retaining both its relevance and vitality. The privilege, however, is
now justified for different reasons. First, the doctrine is rooted in the
 11th Congress, 3rd Session (2001).
[98] constitutional tradition of separation of powers and supported by
history. [Nixon v. Fitzgerald, 451 U.S. 731 (1982)]. The separation
 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo,
[99] of powers principle is viewed as demanding the executive's
GR No. 146710-15, Vol. II, p. 231. independence from the judiciary, so that the President should not be
subject to the judiciary's whim. Second, by reason of public
[100]
 11th Congress, 3rd Session (2001). convenience, the grant is to assure the exercise of presidential duties
and functions free from any hindrance or distraction, considering that
[101]
 11th Congress, 3rd Session (2001). the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v.
Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time and substance  Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428
[114]

of the chief executive will be spent on wrangling litigation, (1967).

disrespect upon his person will be generated, and distrust in the
government will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 [115]
 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
(1910)]. Third, on grounds of public policy, it was recognized that
the gains from discouraging official excesses might be more than [116]
 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).
offset by the losses from diminished zeal [Agabin, op. cit., at 121.].
Without immunity, the president would de disinclined to exercise [117]
 520 U.S. 681 (1997).
decision-making functions in a manner that might detrimentally
affect an individual or group of individuals. [See H. [118]
 See section 1, Art. XI of the 1987 Constitution.
Schnechter, Immunity of Presidential Aides from Criminal
Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].1 [119]
 See section 27, Art. II of the 1987 Constitution.

 62 Phil. L.J. 113 (1987).

[106] [120]
 See section 1, Art. XI of the 1987 Constitution.

 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984,

[107] [121]
 See section 15, Art. XI of the 1987 Constitution.
p. 7.
 
[122] See section 4, Art. XI of the 1987 Constitution.

 Records of the Constitutional Commission of 1986, Vol. II,

[108]

Records, p. 423, July 29, 1986. [123]

 See section 13 (1), Art. XI of the 1987 Constitution.

 Supra at 47.
[109] [124]
 See section 14, Art. XI of the 1987 Constitution.

 Records of Constitutional Commission, Vol. II, July 28, 1986, p.

[110]
 See Brandwood, Notes: "You Say `Fair Trial' and I say `Free
[125]

355. Press:' British and American Approaches to Protecting Defendant's

Rights in High Profile Trials," NYU Law Rev., Vol. 75, No. 5, pp.
 145 SCRA 160 (1986).
[111]
1412-1451 (November 2000).

 128 SCRA 324 (1984).

[112] [126]
 Id., p. 1417.

 In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuenco v. Fernan,
[113]
 See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106
[127]

158 29 (1988); and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi- (1970); People v. Teehankee, 249 SCRA 54 (1995).
xiv (1995).
[128]
 249 SCRA 54 (1995).
 phenomenon buried in the pages of our history but for its critical
 287 SCRA 581 at pp. 596-597 (1988).
[129]
dimensions. Now, EDSA 2 would be far from being just another
event in our annals. To this day, it is asked - is Mr. Joseph Ejercito
 247 SCRA 652 (1995).
[130]
Estrada still the President of the Republic of the Philippines?

 Extensive publicity did not result in the conviction of well known

[131]
To retort, one is to trace the events that led to the denouement of the
personalities. E.g., OJ Simpson, John Mitchell, William Kennedy incumbency of Mr. Joseph Ejercito Estrada. Mr. Estrada, herein
Smith and Imelda Marcos. petitioner, was elected to office by not less than 10 million Filipinos
in the elections of May 1998, served for well over two years until 20
 Memorandum, p. 25; Rollo, GR Nos. 146710-15, Vol. III, p. 647.
[132]
January 2001. Formally impeached by the Lower House of
Representatives for cases of Graft and Corruption, Bribery, Betrayal
 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III,
[133]
of Public Trust and Culpable Violation of the Constitution, he was
pp. 572-573. tried by the Senate. The Impeachment Tribunal was tasked to decide
on the fate of Mr. Estrada - if convicted, he would be removed from
 See section 4, Rule 112.
[134]
office and face prosecution with the regular courts or, if acquitted, he
would remain in office. An evidence, however, presented by the
 Estes v. Texas, 381 US 532, 540 (1965).
[135]
prosecution tagged as the "second envelope" would have it
differently. The denial by the impeachment court of the pleas to have
the dreaded envelope opened promptly put the trial into a halt.
Within hours after the controversial Senate decision, an angered
people trooped once again to the site of the previous uprising in 1986
that toppled the 20- year rule of former President Ferdinand E.
Marcos- EDSA. Arriving in trickles, the motley gathering swelled to
an estimated million on the fourth day, with several hundreds more
nearing Mendiola reportedly poised to storm Malacañang.
CONCURRING OPINION
In the morning of 20 January 2001, the people waited for Erap to
step down and to heed the call for him to resign. At this time, Estrada
was a picture of a man, elected into the Presidency, but beleaguered
VITUG, J.: by solitude-empty of the support by the military and the police,
abandoned by most of his cabinet members, and with hardly any firm
succor from constituents. And despite the alleged popularity that
This nation has a great and rich history authored by its people. The brought him to power, mass sentiments now appeared to be for his
EDSA Revolution of 2001 could have been one innocuous immediate ouster.

With this capsule, the constitutional successor of Estrada in the
person of Gloria Macapagal-Arroyo, then incumbent Vice-President,
took the cue and requested the Chief Justice to administer her oath-
taking. In a letter, sent through "fax" at about half past eleven o'clock
in the morning of 20 January 2001, read:
"The undersigned respectfully informs this Honorable Court that
Joseph Ejercito Estrada is permanently incapable of performing the
duties of his office resulting in his permanent disability to govern
and serve his unexpired term. Almost all of his cabinet members
have resigned and the Philippine National Police have withdrawn
their support for Joseph Ejercito Estrada. Civil Society has likewise
refused to recognize him as President.
"In view of this, I am assuming the position of the President of the
Republic of the Philippines. Accordingly, I would like to take my
oath as President of the Republic before the Honorable Chief Justice
Hilario G. Davide, Jr., today, 20 January 200, 12:00 noon at Edsa
Shrine, Quezon City, Metro Manila.
"May I have the honor to invite the members of the Honorable Court
to attend the oath-taking."
The tribunal, aware of the grave national crisis which had the marks
of yet intensifying into possible catastrophic proportions, agreed to
honor the request. Theretofore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was
seen to be functioning. As the hours passed, however, the extremely
volatile situation was getting more precarious by the minute, and the
combustible ingredients were all but ready to ignite. The country was
faced with a phenomenon ---- the phenomenon of a people, who, in
the exercise of a sovereignty perhaps too limitless to be explicitly
contained and constrained by the limited words and phrases of the
Constitution, directly sought to remove their president from office.
On that morning of the 20th of January, the high tribunal was
confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its
characteristic reticence? Or was it propitious for it to itself take a
hand? The first was fraught with danger and evidently too risky to
accept. The second could very well help avert imminent bloodshed.
Given the realities, the Court was left hardly with choice.
Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution
was issued following the en banc session of the Court on 22 January
2001; it read:
"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria
Macapagal Arroyo to take her Oath of Office as President of the
Philippines before the Chief Justice- Acting on the urgent request of
Vice President Gloria Macapagal-Arroyo to be sworn in as President
of the Republic of the Philippines, addressed to the Chief Justice and
confirmed letter to the Court, dated January 20, 20001, which request
was treated as an administrative matter, the Court resolved
unanimously to CONFIRM the authority given by the twelve (12)
members of the Court then present to the Chief justice on January 20,
2001 to administer the oath of office to Vice President Gloria
Macapagal-Arroyo as President of the Philippines, at noon on
January 20, 2201.
"This resolution is without prejudice to the disposition of any
justiciable case which may be filed by a proper party."
At high noon on the 20th of January 2001, Gloria Macapagal-Arroyo
was sworn in as the 14th President of the Republic of the Philippines.
EDSA, once again, had its momentous role in yet another "bloodless
revolution." The Court could not have remained placid amidst the
worsening situation at the time. It could not in conscience allow the
high-strung emotions and passions for EDSA to reach the gates of
Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the Presidency. The "By virtue of the provisions of Section 11, Article VII of the
danger was simply overwhelming. The extra-ordinariness of the Constitution, I am hereby transmitting this declaration that I am
reality called for an extra-ordinary solution. The Court has chosen to unable to exercise the powers and duties of my office. By operation
prevent rather than cure an enigma incapable of being recoiled. of law and the Constitution, the Vice-President shall be acting
President."
The alarming social unrest ceased as the emergence of a new
Truly, the grounds raised in the petition are as dubitable and the
leadership so unfolded. The promise of healing the battered nation
petitioner's real motive in filing the case.
engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr.
The pressing issue must now catapult to its end.
Estrada would insist that he was still President and that Mme.
Macapagal-Arroyo took over only in an acting capacity.
Resignation is an act of giving up of the act of an officer by which he
renounces his office indefinitely. In order to constitute a complete
So it is argued, Mr. Estrada remains to be the President because
and operative act of resignation, the officer or employee must show a
under the 1987 Constitution, the Vice-President may assume the
clear intention to relinquish or surrender this position accompanied
Presidency only in its explicitly prescribed instances; to wit, firstly,
by an act of relinquishment. Resignation implies an expression of an
in case of death, permanent disability, removal from office, or
incumbent in some form, express or implied, of the intention to
resignation of the President,[1] secondly, when the President
surrender, renounce, relinquish the office.[4]
transmits to the President of the Senate and the Speaker of the House
of Representatives his written declaration that he is unable to
Mr. Estrada imports that he did not resign from the Presidency
discharge the powers and duties of his office, [2] and thirdly, when
because the word "resignation" has not once been embodied in his
majority of all members of the Cabinet transmit to the President and
letters or said in his statements. I am unable to oblige. The
to the Speaker of the House of Representatives their written
contemporary acts of Estrada during those four critical days of
declaration that the President is unable to discharge the powers and
January are evident of his intention to relinquish his office. Scarcity
duties of his office,[3] the latter two grounds being culled as the
of words may not easily cloak reality and hide true intentions.
"disability clauses."
Crippled to discharge his duties, the embattled President acceded to
have negotiations conducted for a smooth transition of power. The
Mr. Estrada belies that he cannot be considered to have relinquished
belated proposals of the President to have the Impeachment Court
his office for none of the above situations have occurred. The
allow the opening of the controversial envelope and to postpone his
conditions for constitutional succession have not been met. He states
resignation until 24 January 2001 were both rejected. On the
that he has merely been "temporarily incapacitated" to discharge his
morning of 20 January 2001, the President sent to Congress the
duties, and he invokes his letters to both Chambers of the Congress
following letter ---
consistent with Section 11 of Article VII of the 1987 Constitution.
The twin letters, dated 20 January 2001, to the two houses read: "By virtue of the provisions of Section II, Article VII, of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the acting
President."
Receipt of the letter by the Speaker of the lower house was placed at
around eight o'clock in the morning but the Senate President was said
to have received a copy only on the evening of that day. Nor this
Court turn a blind eye to the paralyzing events which left petitioner
to helplessness and inutility in office - not so much by the confluence
of events that forced him to step down from the seat of power in a
poignant and teary farewell as the recognition of the will of the
governed to whom he owed allegiance. In his "valedictory message,"
he wrote:
"At twelve o'clock noon today, Vice-President Gloria Macapagal
Arroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of
her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
"It is for this reason that I now leave Malacañang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the palace of our
people with gratitude for the opportunities given to me for service to
our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
"I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
"May the Almighty bless our country and our beloved people.
"MABUHAY!
Abandonment of office is a species of resignation, [5] and it connotes
the giving up of the office although not attended by the formalities
normally observed in resignation. Abandonment may be effected by
a positive act or can be the result of an omission, whether deliberate
or not.[6]
Mr. Joseph Estrada invokes "temporary incapacity" under Section
11, Article VII of the Constitution. This assertion is difficult to
sustain since the temporary incapacity contemplated clearly
envisions those that are personal, either by physical or mental in
nature,[7] and innate to the individual. If it were otherwise, when then
would the disability last? Would it be when the confluent causes
which have brought about that disability are completely set in
reverse? Surely, the idea fails to register well to the simple mind.
Neither can it be implied that the takeover has installed a
revolutionary government. A revolutionary government is one which
has taken seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of
the established government.[8] In its delimited concept, it is
characterized often,[9] albeit not always,[10] by violence as a means
and specificable range of goals as ends. In contrast, EDSA 2 did not
envision radical changes. The government structure has remained
intact. Succession to the Presidency has been by the duly-elected
Vice-President of the Republic. The military and the police, down
the line, have felt to be so acting in obedience to their mandate as the
protector of the people.
Any revolution, whether it is violent or not, involves a radical
change. Huntington sees revolution as being "a rapid, fundamental
and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership,
government activity and policies.[11] " The distinguished A.J. Milne
makes a differentiation between constitutional political
action and revolutionary political action. A constitutional political
action, according to him, is a political action within a legal
framework and rests upon a moral commitment to uphold the
authority of law. A revolutionary political action, on the other hand,
acknowledges no such moral commitment. The latter is directed
towards overthrowing the existing legal order and replacing it with
something else.[12] And what, one might ask, is the "legal order"
referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution[13] and concerns itself with
structures rather than personalities in the establishment. Accordingly,
structure would refer to the different branches of the government and
personalities would be the power-holders. If determination would be
made whether a specific legal order is intact or not, what can be vital
is not the change in the personalities but a change in the structure.
The ascension of Mme. Macapagal-Arroyo to the presidency has
resulted neither in the rupture nor in the abrogation of the legal order.
The constitutionally-established government structures, embracing
various offices under the executive branch, of the judiciary, of the
legislature, of the constitutional commissions and still other entities,
including the Armed Forces of the Philippines and the Philippine
National Police and local governments as well, have all remained
intact and functioning.
An insistence that the events in January 2001 transgressed the letter
of the Constitution is to ignore the basic tenet of constitutionalism
and to fictionalize the clearly preponderant facts.
More than just an eloquent piece of frozen document, the
Constitution should be deemed to be a living testament and memorial
of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not
without meaning. Nourished by time, it grows and copes with the
changing millieu. The framers of the Constitution could not have
anticipated all conditions that might arise in the aftermath of events.
A constitution does not deal in details, but enunciates the general
tenets that are intended to apply to all facts that may come about but
which can be brought within its directions.[14] Behind its conciseness
is its inclusiveness and its aperture overridingly lie, not fragmented
bur integrated and encompassing, its spirit and its intent. The
Constitution cannot be permitted to deteriorate into just a petrified
code of legal maxims and hand-tied to its restrictive letters and
wordings, rather than be the pulsating law that it is. Designed to be
an enduring instrument, its interpretation is not to be confined to the
conditions and outlook which prevail at the time of its adoption;
[15]
 instead, it must be given flexibility to bring it in accord with the
vicissitudes of changing and advancing affairs of men.
[16]
 Technicalities and play of words cannot frustrate the inevitable
because there is an immense difference between legalism and justice.
If only to secure our democracy and to keep the social order -
technicalities must give way. It has been said that the real essence of
justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the
dynamic role as a brick in the ultimate development of social edifice.
[17]
 Anything else defeats the spirit and intent of the Constitution for
which it is formulated and reduces its mandate to irrelevance and
obscurity.
All told, the installation of Mme. Macapagal-Arroyo perhaps came
close to, but not quite, the revolutionary government that we know.
The new government, now undoubtedly in effective control of the
entire country, domestically and internationally recognized to be
legitimate, acknowledging a previous pronouncement of the court,
[18]
 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of
the 1987 Constitution have been saved and preserved. Inevitably,
Mme. Gloria Macapagal-Arroyo is the President, not merely an
Acting President, of the Republic of the Philippines.
A reminder of an elder to the youth. After two non-violent civilian  "Mr. SUAREZ. X X X
[7]

uprising within just a short span of years between them, it might be

"May we now go to Section 11, page 5. This refers to the President's
said that popular mass action is fast becoming an institutionalized
written declaration of inability to discharge the powers and duties of
enterprise. Should the streets now be the venue for the exercise of
the Office of the President. Can this written declaration to be done
popular democracy? Where does one draw the line between the rule
for and in behalf of the President if, for example, the President is in
of law and the rule of the mob, or between "People Power" and
no position to sign his name, like he suffers an accident and both his
"Anarchy?" If, as the sole justification for its being, the basis of the
arms get to be amputated?
Arroyo presidency lies alone on those who were at EDSA, then it
does rest on loose and shifting sands and might tragically open a
"Mr. REGALADO. We have not had a situation like that even in the
Pandora's box more potent than the malaise it seeks to address.
jurisdiction from which we borrowed this provision, but we feel that
Conventional wisdom dictates the indispensable need for great
in the remote situation that the Commissioner has cited in that the
sobriety and extreme circumspection on our part. In this kind of
President cannot make a written declaration, I suppose an alternative
arena, let us be assured that we are not overcome by senseless
would be considered wherein he can so expressly manifest in an
adventurism and opportunism. The country must not grow oblivious
authentic manner what should be contained in a written declaration.
to the innate perils of people power for no bond can be stretched far
xxx
too much to its breaking point. To abuse is to destroy that which we
may hold dear.
"Mr. SUAREZ. x x x I am thinking in terms of what happened to
President Wilson. Really, the physical disability of the gentleman
was never made clear to the historians. But suppose a situation will
happen in our country where the President may suffer coma and gets
 Section 8, Article VII, 1987 Constitution
[1]
to be unconscious, which is practically a total inability to discharge
the powers and duties of his office, how can he submit a written
 Section 11, 1st paragraph, Article VII, 1987 Constitution
[2]
declaration of inability to perform the duties and functions of his
office?
 Ibid., 2nd paragraph
[3]

"x x x x x x x x x
 Ortiz vs. Comelec, 162 SCRA 812
[4]

"FR. BERNAS. Precisely. The second paragraph is to take care of

 Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No.
[5]
the Wilson situation.
11883, 16 January 1998
"Mr. SUAREZ. I see.
 Cruz, Carlos L., The Law of Public Officers, p. 174, 1997 Edition
[6]
"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this  Lawyer's League for a Better Philippines vs. President Corazon C.
[18]

twenty-fifth Amendment to the American Constitution as adopted on Aquino, et al., G.R. No. 73748, May 22, 1986.
February 10, 1967 prevent a recurrence of such situation. Besides, it
was not only the Wilson matter. As I have already mentioned here,
they have had situations in the United States, including those of
President Garfield, President Wilson, President Roosevelt and
President Eisenhower." (11 RECORDS, pp. 421-423)
 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086
[8]

MENDOZA, J., Concurring:
 Ibid.
[9]

[10]
 Ibid. In issue in these cases is the legitimacy of the presidency of
respondent Gloria Macapagal-Arroyo. In G.R. No. 146738, the
 Zacorin, Theories of Revolution in Contemporary Historiography,
[11]
petition for quo warranto seeks a declaration that petitioner Joseph
88 POLITICAL SCIENCE QUARTERLY Ejercito Estrada is the lawful President of the Philippines and the
respondent Gloria Macapagal-Arroyo is merely acting President on
 Milne, Philosophy and Political Action, The Case of Civil Rights,
[12]
account of the former's temporary disability. On the other hand, in
21 Political Studies, 453, 463 (1973) G.R. Nos. 146710-15, the petition seeks to prohibit respondent
Ombudsman Aniano Desierto from investigating charges of plunder,
 Fernandez, LAW and POLITY: Towards a Systems Concept of
[13]
bribery, malversation of public funds, and graft and corruption
Legal validity, 46 Philippine Law Journal, 390-391 (1971) against petitioner Estrada on the theory that, being still President, he
is immune from suit.
[14]
 16 American Jurisprudence 2d.
In both cases, a preliminary question is raised by respondents
[15]
 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252 whether the legitimacy of Gloria Macapagal-Arroyo's presidency is a
justiciable controversy. Respondent Gloria Macapagal-Arroyo
 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich
[16]
contends that the matter is not justiciable because of "the virtual
209, 39 NW 2d 763. impossibility of undoing what has been done, namely, the transfer of
constitutional power to Gloria Macapagal-Arroyo as a result of the
 Battles in the Supreme Court by Justice Artemio Panganiban, pp.
[17]
events starting from the expose of Ilocos Sur Governor Luis 'Chavit'
103-104 Singson in October 2000."[1] In support of this contention, respondent
cites the following statements of this Court concerning the Aquino
government which it is alleged applies to her administration:
. . . [T]he legitimacy of the Aquino government is not a justiciable
matter. It belongs to the realm of politics where only the people of
the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon
C. Aquino which is in effective control of the entire country so that it
is not merely a de facto government but is in fact and law a de jure
government. Moreover, the community of nations has recognized the
legitimacy of the present government. All the eleven members of this
Court, as reorganized, have sworn to uphold the fundamental law of
the Republic under her government.[2]
From the natural law point of view, the right to revolution has been
defined as "an inherent right of a people to cast out their rulers,
change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the
legal and constitutional methods of making such change have proved
inadequate or are so obstructed as to be unavailable." It has been said
that "the locus of positive law-making power lies with the people of
the state" and from there is derived "the right of the people to
abolish, to reform and to alter any existing form of government
without regard to the existing constitution."[3]
But the Aquino government was a revolutionary government which
was established following the overthrow of the 1973 Constitution.
The legitimacy of a revolutionary government cannot be the subject
of judicial review. If a court decides the question at all qua court, it
must necessarily affirm the existence and authority of such
government under which it is exercising judicial power. [4] As
Melville Weston long ago put it, "the men who were judges under
the old regime and the men who are called to be judges under the
new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome
still uncertain."[5] This is what the Court did in Javellana v. Executive
Secretary[6] when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the
new government. As the Court said in Occena vs.
COMELEC[7] and Mitra vs. COMELEC,[8] "[P]etitioners have come
to the wrong forum. We sit as a Court duty-bound to uphold and
apply that Constitution. . . . It is much too late in the day to deny the
force and applicability of the 1973 Constitution."
In contrast, these cases do not involve the legitimacy of a
government. They only involve the legitimacy of the presidency of
respondent Gloria Macapagal-Arroyo, and the claim of respondents
in precisely that Macapagal-Arroyo's ascension to the presidency
was in accordance with the Constitution.[9]
Indeed, if the government of respondent Gloria Macapagal-Arroyo is
a revolutionary one, all talk about the fact that it was brought about
by succession due to resignation or permanent disability of petitioner
Joseph Ejercito Estrada is useless. All that respondent have to show
is that in the contest for power Macapagal-Arroyo's government is
the successful one and is now accepted by the people and recognized
by the community of nations.
But that is not the case here. There was no revolution such as that
which took place in February 1986. There was no overthrow of the
existing legal order and its replacement by a new one, no
nullification of the Constitution.
What is involved in these cases is similar to what happened in 1949
in Avelino v. Cuenco.[10] In that case, in order to prevent Senator
Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which
tumult broke out in the Senate gallery, as if by pre-arrangement, as
the Court noted, and Avelino suddenly adjourned the session and,
followed by six senators, walked out of the session hall. The
remaining senators then declared the position of President of the
Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been
validly elected acting president of the Senate, considering that there
were only 12 Senators (out of 24) present, one senator (Sen.
Confessor) being abroad while another one (Sen. Sotto) was ill in the
hospital.
Although in the beginning this Court refused to take cognizance of a
petition for quo warranto brought to determine the rightful president
of the Senate, among other things, in view of the political nature of
the controversy, involving as it did an internal affair of a coequal
branch of the government, in the end this Court decided to intervene
because of the national crisis which developed as a result of the
unresolved question of presidency of the Senate. The situation
justifying judicial intervention was described, thus:
We can take judicial notice that legislative work has been at a
standstill; the normal and ordinary functioning of the Senate has
been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied,
and remained unexecuted like mere scraps of paper, notwithstanding
the fact that the persons to be arrested are prominent persons with
well-known addresses and residences and have been in daily contact
with news reporters and photographers. Farce and mockery have
been interspersed with actions and movements provoking conflicts
which invite bloodshed.
. . . Indeed there is no denying that the situation, as obtaining in the
upper chamber of Congress, is highly explosive. It had echoed in the
House of Representatives. It has already involved the President of
the Philippines. The situation has created a veritable national crisis,
and it is apparent that solution cannot be expected from any quarter
other than this Supreme Court, upon which the hopes of the people
for an effective settlement are pinned. [11]
In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his
Court has no other alternative but to meet the challenge of the
situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the
Senate is one that imperatively calls for the intervention of this
Court."[12] Questions raised concerning respondent Gloria
Macapagal-Arroyo's presidency similarly justify, in my view,
judicial intervention in these cases.
Nor is our power to fashion appropriate remedies in these cases in
doubt. Respondents contend that there is nothing else that can be
done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like
toothpaste, we are told, which, once squeezed out of the tube, cannot
be put back.
Both literally and figuratively, the argument is untenable. The
toothpaste can be put back into the tube. Literally, it can be put back
by opening the bottom of the tube - that is how toothpaste is put in
tubes and manufacture in the first place. Metaphorically, the
toothpaste can also be put back. In G.R. No. 146738, a writ can be
issued ordering respondent Gloria Macapagal-Arroyo to vacate the
Office of the President so that petitioner Joseph E. Estrada can be
reinstated should the judgment in these cases be in his favor.
Whether such writ will be obeyed will be a test of our commitment
to the rule of law. In election cases, people accept the decisions of
courts even if they be against the results as proclaimed. Recognition
given by foreign governments to the presidency poses no problem.
So, as far as the political question argument of respondents is
anchored on the difficulty or impossibility of devising effective
judicial remedies, this defense should not bar inquiry into the
legitimacy of the Macapagal-Arroyo administration.
This brings me to the main issue, whether respondent Gloria
Macapagal-Arroyo's ascension to the Presidency was in accordance
with the Constitution. Art. VII, §8 provides in pertinent parts:
In case of death, permanent disability, removal from office, or
resignation of the President, the Vice-President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been
elected and qualified.
The events that led to the departure of petitioner Joseph E. Estrada
from office are well known and need not be recounted in great detail
here. They began in October 2000 when allegations of wrongdoings
involving bribe-taking, illegal gambling (jueteng), and other forms of
corruption were made against petitioner before the Blue Ribbon
Committee of the Senate. On November 13, 2000, petitioner was
impeached by the House of Representatives and, on December 7,
impeachment proceedings were begun in the Senate during which
more serious allegations of graft and corruption against petitioner
were made and were only stopped on January 16, 2001 when 11
senators, sympathetic to petitioner, succeeded in suppressing
damaging evidence against petitioner. As a result, the impeachment
trial was thrown into an uproar as the entire prosecution panel
walked out and Senate President Aquilino Pimentel resigned after
casting his vote against petitioner.
The events, as seen through the eyes of foreign correspondents, are
vividly recounted in the following excerpts from the Far Eastern
Economic Review and Time Magazine quoted in the Memorandum
of petitioner in G.R. Nos. 146710-15, thus:
11. The decision immediately sent hundreds of Filipinos out into
the streets, triggering rallies that swelled into a massive four-
day demonstration. But while anger was apparent among the
middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos.
Citing that mandate and exploiting the letter of the
Constitution, which stipulates that a written resignation be
presented, he refused to step down even after all of the
armed forces, the police and most of his cabinet withdrew
their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
12. When an entire night passed without Estrada's resignation,
tens of thousands of frustrated protesters marched on
Malacañang to demand that the president leave office. An air
force fighter jet and four military helicopters buzzed the
palace to remind the president that had lost the reins of
power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
13. While the television cameras were focused on the rallies -
and the commentators became lost in reveries about People
Power revisited - behind-the-scenes negotiations had been
going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the
President. Chief of Staff Reyes and Defense Secretary
Mercado had made their fateful call to Estrada after
luncheon attended by all the top commanders. The officers
agreed that renouncing Estrada was the best course, in part
because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there
loomed the possibility of factional fighting or, worse, civil
war. [TIME, "People Power Redux", id at p. 18]
14. It finally took a controversial Supreme Court declaration that
the presidency was effectively vacant to persuade Estrada to
pack up and move out to his family home in Manila - still
refusing to sign a letter of resignation and insisting that he
 was the legal president [FAR EASTERN ECONOMIC
REVIEW, "More Power to the Powerful", supra, ibid.].
Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he
was unable to perform the duties of his Office.[13]
To recall these events is to note the moral framework in which
petitioner's fall from power took place. Petitioner's counsel claimed
petitioner was forced out of Malacañang Palace, seat of the
Presidency, because petitioner was "threatened with
mayhem."[14] What, the President of the Philippines, who under the
Constitution is the commander-in-chief of all the armed forces,
threatened with mayhem? This can only happen because he had lost
his moral authority as the elected President.
Indeed, the people power movement did not just happen at the call of
some ambitious politicians, military men, businessmen and/or
prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis
"Chavit" Singson, Emma Lim, Edgardo Espiritu, and other witnesses
against petitioner. Their testimonies during the impeachment trial
were all televised and heard by millions of people throughout the
length and breadth of this archipelago. As a result, petitioner found
himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the
Philippine National Police withdrew their support of the President,
while civil society announced its loss of trust and confidence in him.
Public office is a public trust. Petitioner lost the public's trust and as
a consequence remained President only in name. Having lost the
command of the armed forces and the national police, he found
himself vulnerable to threats of mayhem.
This is the confession of one who is beaten. After all, the permanent
disability referred to in the Constitution can be physical, mental, or
moral, rendering the President unable to exercise the powers and
functions of his office. As his close adviser wrote in his diary of the
final hours of petitioner's presidency:
The President says: "Pagod na pagod na ako. Ayoko na-masyado
nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don't want any more of this-it's too painful. I'm tired of
the red tape, the bureaucracy, the intrigue.) [15]
Angara himself shared this view of petitioner's inability. He wrote in
his diary:
"Let us be realistic," I counter. "The President does not have the
capability to organize a counter-attack. He does not have the AFP or
the Philippine National Police on his side. He is not only in a corner -
he is also down."[16]
This is the clearest proof that petitioner was totally and permanently
disabled at least as of 11 P.M. of Friday, January 19, 2001. Hence
the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that
he was not permanently disabled but only temporarily unable to
discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo
under Art. VII, §11.
From this judgment that petitioner became permanently disabled
becuase he had lost the public's trust, I except extravagant claims of
the right of the people to change their government. While Art. II, §1
of the Constitution says that "sovereignty resides in the people and
all government authority emanates from them," it also says that "the
Philippines is a democratic and republican state." This means that
ours is a representative democracy - as distinguished from a direct
democracy - in which the sovereign will of the people is expressed
through the ballot, whether in an election, referendum, initiative,
recall (in the case of local officials) or plebiscite. Any exercise of the
powers of sovereignty in any other way is unconstitutional. leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative
Indeed, the right to revolt cannot be recognized as a constitutional that the rule of succession in the Constitution be enforced.
principle. A constitution to provide for the right of the people to
revolt will carry with it the seeds of its own destruction. Rather, the But who is to declare the President's permanent disability, petitioner
right to revolt is affirmed as a natural right. Even then, it must be asks? The answer was given by petitioner himself when he said that
exercised only for weighty and serious reasons. As the Declaration of he was already tired and wanted no more of popular demonstrations
Independence of July 4, 1776 of the American Congress states: and rallies against him; when he and his advisers negotiated with
respondent Gloria Macapagal-Arroyo's advisers for a transition of
We hold these Truths to be self-evident, that all Men are created
powers from him to her; when petitioner's own Executive Secretary
equal, that they are endowed by their Creator with certain
declared that petitioner was not only in a corner but was down.
unalienable Rights, that among these are Life, Liberty, and the
Pursuit of Happiness-That to secure these Rights, Governments are
Nor is it correct for petitioners to say that the present situation is
instituted among Men, deriving their just Powers from the Consent
similar to our situation during the period (from 1941 to 1943) of our
of the Governed, that whenever any Form of Government becomes
occupation by the Japanese, when we had two presidents, namely,
destructive of these Ends, it is the Right of the People to alter or to
Manuel L. Quezon and Jose P. Laurel. This is turning somersault
abolish it, and to institute new Government, laying its Foundation on
with history. The Philippines had two presidents at that time for the
such Principles, and organizing its Powers in such Form, as to them
simple reasons that there were then two government - the de
shall seem most likely to effect their Safety and
facto government established by Japan as belligerent occupant, of
Happiness. Prudence, indeed, will dictate that Governments long
which Laurel was president, and the de jure Commonwealth
established should not be changed for light and transient Causes; and
Government in exile of President Manuel L. Quezon. That a
accordingly all Experience hath shewn, that Mankind are more
belligerent occupant has a right to establish a government in enemy
disposed to suffer, while Evils are sufferable, than to right
territory is a recognized principle of international law. [18] But today
themselves by abolishing the Forms to which they are accustomed.
we have only one government, and it is the one set up in the 1987
But when a long Train of Abuses and Usurpations, pursuing
Constitution. Hence, there can only be one President.
invariably the same Object, evinces a Design to reduce them under
absolute Despotism, it is their Right, it is their Duty, to throw off
Having reached the conclusion that petitioner Joseph E. Estrada is no
such Government, and to provided new Guards for their future
longer President of the Philippines, I find no need to discuss his
Security.[17]
claim of immunity from suit. I believe in the canon of adjudication
Here, as I have already indicated, what took place at EDSA from that the Court should not formulate a rule of constitutional law
January 16 to 20, 2001 was not a revolution but the peaceful broader than is required by the precise facts to which it is applied.
expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was The only question left for resolution is whether there was massive
the fact that there was a crisis, nay a vacuum, in the executive prejudicial publicity attending the investigation by the Ombudsman
of the criminal charges against petitioner. The test in this jurisdiction
is whether there has been "actual, not merely possible,  83 Phil. at 76 (Perfecto, J., concurring).
[11]

prejudice"[19] caused to petitioner as a result of publicity. There has

been no proof of this, and so I think this claim should simply be  Id. at 25-26 (concurring and dissenting).
[12]

dismissed.
 Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.
[13]

For the foregoing reasons, I vote to dismiss the petitions in these

cases.  Petition, G.R. No. 146738, p. 13.
[14]

 Edgardo Angara, Erap's Final Hours Told, Philippine Daily

[15]

Inquirier, p. A6, February 6, 2001.

 Joint Memorandum of the Secretary of Justice and Solicitor
[1]

General, p. 15.  Id. (emphasis added).

[16]

 Lawyers League for a Better Philippines v. President Corazon C.

[2]  Emphasis added.
[17]

Aquino, G.R. No. 73746, May 22, 1986.

 Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director
[18]

 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597

[3] of Prisons, 75 Phil. 285 (1945); Laurel v. Misa, 77 Phil. 856 (1947).
(1992).
 See Martelino v. Alejandro, 32 SCRA 106 (1970).
[19]

 Luther v. Borden, 7 How. 1 (1848).

[4]

 Political Questions, 38 HARV. L. REV. 296, 305 (1925).

[5]

 50 SCRA 30 (1973).

[6]

 104 SCRA 1 (1981).

[7]

 104 SCRA 59 (1981).

[8]
CONCURRING OPINION

 Joint Memorandum of the Secretary of Justice and Solicitor

[9]

General, p. 2.
BELLOSILLO, J.:
[10]
 83 Phil. 17 (1949).
I FULLY CONCUR with the opinion written for the majority by Mr.
Justice Puno in the usual penetrating and scholarly flourish of his
pen, characteristically his. Allow me nonetheless to express my
views on whether a vacancy occurred in the Office of the President
to justify and validate Mme. Gloria Macapagal-Arroyo's ascendancy
to the Presidency, if only to emphasize and reinforce what he
advocates in his ponencia. I shall confine myself to this issue upon
which the legitimacy of the present dispensation hinges and to which
all others moor their bearings.
Section 8, Art. VII, of the Constitution which deals with vacancies
occurring in the Office of the President is limited to four (4)
specified situations, to wit: (a) death of the incumbent, (b) his
permanent disability, (c) removal, or (d) resignation from
Office[1] thus-
Sec. 8. In case of death, permanent disability, removal from office,
or resignation of the President, the Vice-President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice-President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall serve as President in
case of death, permanent disability, or resignation of the Acting
President. He shall serve until the President or the Vice-President
shall have been elected and qualified, and be subject to the same
restrictions of powers and disqualifications as the Acting President
(underscoring supplied).
This constitutional provision is intended precisely to forestall
a hiatus in the exercise of executive powers due to unavoidable or
unpredictable human factors that may supervene during the tenure of
office of the incumbent.
It is admitted that the term permanent disability used in Sec. 8, Art.
VII, is fair example of words which have one meaning that is
commonly accepted, and a materially different or modified one in its
legal sense. It is axiomatic that the primary task in constitutional
construction is to ascertain and assure the realization of the purpose
of the framers, hence of the people, in adopting the Constitution. The
language of the Charter should perforce be construed in a manner
that promotes its objectives more effectively. A strained construction
which impairs its own meaning and efficiency to meet the
responsibilities brought about by the changing times and conditions
of society should not be adopted. Constitutions are designed to meet
not only the vagaries of contemporary events but should be
interpreted to cover even future and unknown circumstances. It
must withstand the assaults of bigots and infidels at the same time
bend with the refreshing winds of change necessitated by unfolding
events.[2] As it is oft repeated, constitutional provisions are
interpreted by the spirit which vivifies and not by the letter which
killeth.[3]
Thus, under the pertinent constitutional provision governing the rules
of succession by the Vice-President in the event of permanent
disability of the President, the term must be reasonably construed,
and as so construed means all kinds of incapacities which render the
President perpetually powerless to discharge the functions and
prerogatives of the office. This is what appears to have been in the
minds of the framers of the 1987 Constitution. As borne by the
deliberations of the Constitutional Commission[4]-
MR SUAREZ. Thank you Madam President. In the proposed draft
for Section 5 of the Honorable de los Reyes, he employed the phrase
"BECOMES PERMANENTLY DISABLED," I suppose this would
refer to a physical disability, or does it also include mental
disability? Constitution, maintaining peace and order and protecting the whole
Filipino people; (d) the spontaneous acknowledgment by both
MR. DE LOS REYES. It includes all kinds of disabilities which Houses of congress - the Senate represented by the Senate President,
will disable or incapacitate the President or Vice-President from and the House of Representatives by the Speaker - of Mme. Gloria
the performance of his duties(underscoring supplied for emphasis). Macapagal-Arroyo as the constitutional successor to the Presidency;
and, (e) the manifestation of support by the Papal Nuncio, doyen of
Clearly, permanent disability in the sense it is conceptualized in the
the diplomatic corps, and the recognition and acceptance by world
Constitution cannot realistically be given a restrictive and
governments of the Presidency of Mme. Gloria Macapagal-Arroyo.
impractical interpretation as referring only
By virtue hereof, petitioner has lost all moral and legal authority to
to physical or mental incapacity, but must likewise cover other forms
lead. Without the people, an effectively functioning cabinet, the
of incapacities of a permanent nature, e.g., functional disability.
military and the police, with no recognition from Congress and the
Indeed, the end sought to be achieved in inserting Sec. 8 of Art. VII
international community, petitioner had absolutely no support from
in the Constitution must not be rendered illusory by a strained
and control of the bureaucracy from within and from without. In fact
interpretation fraught with constitutionally calamitous or absurd
he had no more functioning government to speak of. It is in this
consequences. The present scenario confronting the Republic had
context that petitioner was deemed to be absolutely unable to
been wisely foreseen and anticipated by the framers, for after all, the
exercise or discharge the powers, duties and prerogatives of the
1987 Constitution was sired by People Power I.
Presidency.
It may be asked: Was petitioner rendered permanently disabled as
The irremediable nature of his disability cannot be doubted. It is
President by the circumstances obtaining at the height of People
well-nigh inconceivable that there would be a reversal of all the
Power II as to justify the ascension of Mme. Gloria Macapagal-
factors that disabled him. There was nothing in the withdrawal of
Arroyo as the 14th de jure President of the Republic? So he was;
support from the various sectors which would suggest that it was
hence, the assumption of respondent as President.
merely temporary or conditional. On the contrary, the withdrawal of
support was categorical and unqualified. Certainly, the factual milieu
I view petitioner's permanent disability from two (2) different
of this case makes it all the more remote and very unlikely that those
perspectives: objectively and subjectively. From the objective
who have withdrawn their support from petitioner would suddenly
approach, the following circumstances rendered inutile petitioner's
have a change of heart, intone mea culpa, and shift back their
administration and powers as Chief Executive: (a) the refusal of a
allegiance to him once again.
huge sector of civil society to accept and obey him as President; (b)
the mass resignation of key cabinet officials thereby incapacitating
From the subjective approach, I am likewise convinced that
him from performing his duties to execute the laws of the land and
petitioner's contemporaneous acts and statements during and after the
promote the general welfare; (c) the withdrawal of support of the
critical episode are eloquent proofs of his implied - but nevertheless
entire armed forces and the national police thus permanently
unequivocal - acknowledgement of the permanence of his disability.
paralyzing him from discharging his task of defending the
First. His Press Statement released shortly before leaving Malacañan
Palace on 20 January 2001, which sounded more like a mournful
farewell, did not intimate any contingency or condition, nor make
any allusion, nary a hint, that he was holding on to the office, or that
he intended to reclaim the Presidency at some determinable future
time-
At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her Proclamation as President, I do not wish
to be a factor that will prevent the restoration of unity and order
in our civil society.
It is for this reason that I now leave Malacañan Palace, the seat
of the presidency of this country, for the sake of peace and in
order to begin the healing process of our nation. I leave the
palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our
country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
This was confirmed by counsel for the petitioner during the oral
arguments on 15 February 2001 the pertinent portions of the
proceedings, textually quoted in part, follow:
SENIOR ASSOCIATE JUSTICE BELLOSILLO:
Mr. Counsel, after the petitioner stepped down from
Malacañan could he have continued to perform his functions
as president if he wanted to?
DEAN AGABIN:
No. Your Honor, in the light of the circumstances, it was not
possible for him to perform his functions as President.
SENIOR ASSOCIATE JUSTICE BELLOSILLO:
In other words, from then on up to now, he has not
performed the functions of the Office of the President of the
Republic of the Philippines?
DEAN AGABIN: No, your Honor.
SENIOR ASSOCIATE JUSTICE BELLOSILLO:
Now, in that press statement explaining why he left
Malacañan, can you see from there any reservation that he
was going to reclaim this position afterwards?
DEAN AGABIN:
I do not see any reservation, your Honor, and in fact as we
stated in our petition, the petitioner will have to consider
several important factors before he ever mulls such a
proposition because the petitioner has always considered the
national interest, the avoidance of bloodshed, the need for
unity among our fractious people and other political factors
before he would ever think of doing that. [5]
Plainly, the foregoing dialogue that transpired in the session of the
Court unmistakably evinced the intention of petitioner to vacate his
office for good, as he did, without any reservation to return thereto.
Second. In the same Press Statement petitioner stated a fact: Vice
President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines, thus belying his subsequent
disclaimer that respondent merely assumed the office in an acting
capacity.
Verily, the status of Mme. Gloria Macapagal-Arroyo's assumption
into office is evident from her oath -
I, GLORIA MACAPAGAL-ARROYO, Vice President of the
Philippines, do solemnly swear that I will faithfully and
consentiously fulfill my duties as President of the
Philippines, preserve and defend Constitution, execute its laws, do
justice to every man, and consecrate myself to the service of the
Nation.
So help me God (underscoring supplied).
Moreover, no less than counsel for the petitioner admitted this fact,
as shown by this exchange -
SENIOR ASSOCIATE JUSTICE BELLOSILLO:
No, but what did she say, was she taking her oath as Acting
president or as President of the Philippines in that oath that
she took?
ATTY. SAGUISAG:
My recollection is only as President without qualifier; I could
be mistaken on this, but that is my recollection at the
moment, Your Honor.[6]
Petitioner's admissions in his Press Statement, which were made
instinctively at the denouement of the political drama, indubitably
show that he recognized the vacancy and the legitimate ascent of
Mme. Gloria Macapagal-Arroyo to the Presidency.
Third. There were serious efforts at negotiation on the eve of
petitioner's ouster between his few remaining allies headed by
Executive Secretary Edgardo J. Angara and certain emissaries from
the camp of Mme. Gloria Macapagal-Arroyo concerning the peaceful
transition of power - a spectacle reminiscent of a vanguished general
suing for peace and relinquishing his fort to the victor.
Unfortunately, petitioner's terms of capitulation were not met with
approval by respondent's camp as time was already of the essence to
avert a serious confrontation between the agitated pro-Erap hold-outs
and the sizzling anti-Erap radicals.
Fourth. Petitioner's appeal to the nation for sobriety amidst the
deafening clamor for his resignation as well as his ill-advised call for
a snap election where he assured all and sundry that he would not run
for re-election, further betrayed serious doubts on his mandate as
President - obviously nothing more than a clever ruse to retard the
inevitable, not to say, legally damned as it was devoid of
constitutional anchor.
Fifth. Petitioner was quoted as saying, "pagod na pagod na ako.
Ayo' ko na - masyado nang masakit," a sigh of submission no doubt.
He repeatedly announced his lack of interest in reclaiming the
Presidency. These are hardly the utterances and deportment of a
president in control of his constituents and the affairs of the state,
thus affirming my conviction that petitioner's permanent
disability, facto et lege, created a constitutional vacancy in the
Presidency.
A final word. In every critical undertaking by the state the most
powerful agent for success or failure is the Constitution, for from
this, as from a fountainhead, all conceptions and plans of action not
only emanate but also attain their consummation. It is the
Constitution, as the repository of the sovereign will, that charts the
future of our fledging Republic. The measure of our adherence
thereto is the ultimate gauge of our insignificance or greatness.

As I observed with keen interest and grave concern the events as

they unfolded in EDSA, the rumblings of a forthcoming tempest SEPARATE OPINION
crossed my mind, only to realize in the end that my fears were
completely unfounded. The Filipinos once again have displayed
political maturity and grace in the midst of a historic crisis, and
despite strong temptations of the moment to effect change extra- KAPUNAN, J.:
legally, they have reaffirmed their commitment to the majesty of the
Constitution and the rule of law.
The core issue presented to the Court is whether respondent Gloria
Macapagal-Arroyo assumed the Presidency within the parameters of
I vote to dismiss the petitions.
the Constitution.

The modes by which the Vice President succeeds the President are
set forth in Article VII, Section 8 of the Constitution: (1) death, (2)
 Cruz, Philippine Political Law, 1995 Ed., p. 180.
[1]
permanent disability, (3) removal from office, and (4) resignation of
the president.[1]
 See Tañada v. Angara, G.R. No. 118295, 2 May 1997, 272 SCRA
[2]

18, 64. Petitioner did not die. He did not suffer from permanent disability.
He was not removed from office because the impeachment
 See Cayetano v. Monsod, G.R. No. 100113, 3 September 1991,
[3]
proceedings against him were aborted through no fault of his.
201 SCRA 210, 228.
Did petitioner resign as President? The ponencia conceded that
 Record of the Constitutional Commission, Vol. II, p. 446.
[4]
petitioner did not write any formal letter of resignation before he left
Malacañan Palace in the afternoon of January 20, 2001, after the
 TSN, 15 February 2001, pp. 63-64.
[5]
oath-taking of respondent Arroyo. However, the ponencia held that
petitioner resigned from the Presidency as "determined from his acts
 TSN, 15 February 2001, p. 36.
[6]
and omissions before, during and after January 20, 2001 or by the
totality of prior contemporary and posterior facts and circumstances
bearing a material relevance on the issue." [2] Among the "facts and
circumstances" pointed to were the so-called "people power"
referring to the crowd that gathered at EDSA and Makati City, the
withdrawal of support by the military and police forces from
petitioner, the resignation of some officials of the government, the
incidents revealed in the diary of Executive Secretary Edgardo
Angara, serialized in the Philippine Daily Inquirer,[3] and the press
statement issued by petitioner at 2:30 p.m. of January 20, 2001
before he and his family left Malacañan Palace.
None of the foregoing "facts and circusmtances" clearly and
unmistakably indicate that petitioner resigned as President.
To constitute a complete operative resignation of a public official,
there must be: (1) the intention to relinquish part of the term and (2)
an act of relinquishment.[4] Intent connotes voluntariness and
freedom of choice. With the impassioned crowd marching towards
Malacañan Palace and with the military and police no longer obeying
petitioner, he was reduced to abject powerlessness. In this sense, he
was virtually forced out of the Presidency. If intention to resign is a
requirement sine qua non for a valid resignation, then forced
resignation or involuntary resignation, or resignation under duress, is
no resignation at all.
The use of "people power" and the withdrawal of military support
mainly brought about petitioner's ouster from power. This
completely negates any pretentions that he voluntarily stepped down
from the presidency. More importantly, people power is not one of
the modes prescribed by the Constitution to create a vacancy in the
office of the President.
The doctrine that sovereignty resides in the people is without doubt
enshrined in our Constitution. This does not mean, however, that all
forms of direct action by the people in matters affecting government
are sanctioned thereunder. To begin with, the concept of "people
power" is vague and ambiguous. It is incapable of exact definition.
What number would suffice for a mass action by irate citizens to be
considered as a valid exercise of "people power?" What factors
should be considered to determine whether such mass action is
representative of the sovereign will? In what instances would
"people power" be justified? There are no judicial standards to
address these questions. To be sure, the people have the right to
assemble and to petition the government for redress of their
grievances. But this right does not go to the extent of directly acting
to remove the President from office by means outside the framework
of the Constitution.
It must be underscored that the Constitution is "the written
instrument agreed upon by the people . . . as the absolute rule of
action and decision for all departments and officers of the
government . . . and in opposition to which any act or rule of any
department or officer of the government, or even of the people
themselves, will be altogether void."[5] In other words, the
Constitution ensures the primacy of the Rule of Law in the
governance of the affairs of the State.
The Constitution prescribes that the sovereign power of the people is
to be expressed principally in the processes of election, referendum
and plebiscite.[6] Thus specifically, the provisions in Article XVII of
the Constitution on Amendments or Revisions have been described
as the "constitution of sovereignty" because they define the
constitutional meaning of "sovereignty of the people."[7] As
explained by Fr. Joaquin G. Bernas, a well-respected constitutionalist
and member of the 1986 Constitutional Commission:
What is this "sovereign structure" on which the new would be built?
It is the amendatory and revision process originally sealed with the
approval of the sovereign people. The process prescribed in a
constitution is called the "constitution of sovereignty," distinguishing
it from the "constitution of liberty" (the Bill of Rights). The
amendatory and revision provisions are called the "constitution of
sovereignty" because it is through these provisions that the sovereign
people have allowed the expression of their sovereign will through
this constitution to be canalized. And through this provision new
changes are linked to the original expression of the will of the
founders of the Constitution.
In other words, the amendatory provisions are called a "constitution
of sovereignty" because they define the constitutional meaning of
"sovereignty of the people." Popular sovereignty, as embodied in the
Philippine Constitution, is not extreme popular sovereignty.[8]
When the people overwhelmingly ratified the Constitution on
February 2, 1987,[9] they committed themselves to abide by its
provisions. In effect, the Filipino people agreed to express their
sovereignty within the parameters defined by the Constitution. As an
American professor on legal philosophy put it: "By ratifying the
constitution that included an explicit amendment process, the
sovereign people committed themselves to following the rule of law,
even when they wished to make changes in the basic system of
government."[10] This is the essence of constitutionalism:
Through constitutionalism we placed limits on both our political
institutions and ourselves, hoping that democracies, historically
always turbulent, chaotic, and even despotic, might now become
restrained, principled, thoughtful and just. So we bound ourselves
over to a law that we made and promised to keep. And though a
government of laws did not displace governance by men, it did mean
that now men, democratic men, would try to live by their word. [11]
Adherence to the Constitution at all times is the cornerstone of a free
and democratic society. In Ex Parte Milligan,[12] it was succintly
said:
The Constitution x x x is a law for rulers and people, equally in war
and peace, and covers with the shield of its protection all classes of
men, at all times, and under all circumstances. No doctrine involving
more pernicious consequences was ever invented by the wit of man
than that any of its provisions can be suspended during any of the
great exigencies of government.[13]
Thus, when the people, acting in their sovereign capacity, desire to
effect fundamental changes in government, such must be done
through the legitimate modes which they previously agreed upon,
meaning within the framework of the Constitution. To sanction any
deviation from the modes prescribed by the Constitution to remove
the President from office, albeit seemingly the public clamor, is to
court instability and anarchy. In the words of Cooley:
x x x Although by their constitutions the people have delegated the
exercise of sovereign powers to the several departments, they have
not thereby divested themselves of the sovereignty. They retain in
their own hands, so far as they have thought it needful to do so, a
power to control the governments they create, and the three
departments are responsible to and subject to be ordered, directed,
changed or abolished by them. But this control and direction must be
exercised in the legitimate mode previously agreed upon. The voice
of the people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and under the conditions which
they themselves have prescribed and pointed out by the Constitution,
or which, consistently with the Constitution, have been prescribed
and pointed out for them by statute; and if by any portion of the
people, however large, an attempt should be made to interfere with
the regular working of the agencies of government at any other time
or in any other mode than as allowed by existing law, either
constitutional or statutory, it would be revolutionary in character, and
must be resisted and repressed by the officers who, for the time
being, represent legitimate government.[14]
For the same reason, the withdrawal of support bythe military and
police forces cannot legitimately set the stage for the removal of the
head of state. The fundamental law expressly mandates the
supremacy of civilian authority over the military at all times, [15] and
installs the President, the highest-ranking civilian government
official, as commander-in-chief of the Armed Forces of the
Philippines.[16] The designation by the Constitution of the armed
forces as protector of the people and of the State requires it to
staunchly uphold the rule of law. Such role does not authorize the
armed forces to determine, by itself, when it should cease to
recognize the authority of the commander-in-chief simply because it
believes that the latter no longer has the full support of the people.
Reliance on the Angara Diary to establish the "intent" or "state of
mind" of petitioner is improper since the contents thereof have not
been duly established as facts and are therefore hearsay. In any case,
the circumstances under which petitioner allegedly manifested his
intention to resign were, at best, equivocal.
The "circumstances" mentioned in the diary refer to, among others,
the incidents when petitioner allegedly expressed his worry about the
swelling crowd at EDSA; when he proposed a snap election where
he would not be a candidate; when he made no objection to the
suggestion for a graceful and dignified exit, but would have a 5-day
grace period to stay in the palace; when he entered into negotiations
for a peaceful and orderly transfer of power and to guarantee the
safety of petitioner and his family; and when he uttered the
following: "Pagod na pagod na ako. Ayoko na, masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga (I am very
tired. I don't want any more of this - it's too painful. I'm tired of the
red tape, the bureaucracy, the intrigue.) I want to clear my name,
then I will go." The negotiations were, however, aborted, according
to the Angara diary, by respondent Arroyo's oath-taking.
The incidents described in the Angara diary tell a story of
desperation, duress and helplessness surrounding petitioner, arguing
eloquently against the idea of intent and voluntariness on his part to
leave the Presidency. In any event, since the conditions proposed for
his resignation were not met, the act did not come to reality.
The hasty departure of petitioner from Malacañan Palace and the
issuance of the subject press statement cannot likewise conclusively
establish the "intent to relinquish" the Presidency. Indeed, it can be
argued just as persuasively that petitioner merely left the Palace to
avert violence but that he did not intend to give up his office. He said
that he was leaving Malacañan, the seat of the presidency. He did not
say he was resigning. Note that in his press statement, petitioner
expressed "strong and serious doubts about the legality and
constitutionality" of Ms. Arroyo's proclamation as President. There
are other factual considerations that negate petitioner's "intent to
relinquish" permanently, particularly, petitioner's letters, both dated
20 January 2001, to the Senate President[17] and the Speaker of the
House of Representatives[18] informing them that he was unable to
exercise the powers and duties of his office and recognizing Ms.
Arroyo as the Acting President.
There is no doubt that the crimes imputed to petitioner are
egregiously wrongful. But he was not afforded the opportunity to
present his side either in the hearings before the Senate Blue Ribbon
Committee or before the Impeachment Court. What were extant were
the massive and relentless mass actions protraying his "guilt,"
whipping up passions into unimaginable frenzy. The senators sitting
as judges in the impeachment court were elected by the Filipino
people because of the latter's trust and confidence in them to
discharge their constitutional duties. They ought to have continued
with the trial until its conclusion, in fidelity to the Constitutional
processes, thus preserving the quietude, stability and order of
society.
However, I share my colleagues' opinion that respondent Arroyo is
now the recognized legitimate President. It is an irreversible fact.
She has taken her oath as President before the Chief Justice on 20
January 2001. Since then Ms. Arroyo has continuously discharged
the functions of the President. Her assumption into power and
subsequent exercise of the powers and performance of the duties
attaching to the said position have been acquiesced in by the
Legislative Branch of government.[19]
The Senate President and the Speaker of the House of
Representatives executed a Joint Statement of Support and
Recognition of respondent Arroyo as petitioner's constitutional
successor.[20] The Senate[21] and the House of
Representatives[22] passed their respective Resolutions expressing
support to the Arroyo administration. Congress confirmed the
nomination of Senator Teofisto Guingona, Jr. as the new Vice-
President, thus acknowledging respondent Arroyo's assumption to
the presidency in a permanent capacity.[23] The Impeachment Court
has resolved that its existence has ceased by becoming functus
officio in view of petitioner's relinquishment of the presidency. [24]
As President, Ms. Arroyo has gained control over all the executive
departments, bureaus and officers and is the acknowledged
Commander-in-Chief of all the armed forces of the Philippines.
[25]
 Her administration has, likewise, been recognized by numerous
members of the international community of nations, including Japan,
Australia, Canada, Spain, the united States, the ASEAN countries, as
well as 90 major political parties in Europe, North America, Asia and
Africa.[26] More importantly, a substantial number of Filipinos have
already acquiesced in her leadership.[27] The Court can do no less.
I vote to DISMISS the petitions.
 Article VII, Section 8 of the Constitution states:
[1]
In case of death, permanent disability, removal from office, or
resignation of the President, the Vice-President shall become the
President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate, or, in case of his
inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been
elected and qualified.
xxx
 Decision, p. 26.
[2]
 Erap's Final Hours, Philippine Daily Inquirer, February 4-6, 2001.
[3]
 F. MECHEM, A TREATISE ON THE LAW OF PUBLIC
[4]
OFFICES AND OFFICERS, Sec. 411, pp. 262-263 (1890).
 T.M. COOLEY, III CONSTITUTIONAL LIMITATIONS (1868).
[5]
Also cited in BERNAS, THE 1987 CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES: A COMMENTARY (1996),
pp. xxxiv-xxxv.
 II RECORD OF THE CONSTITUTIONAL COMMISSION 316.
[6]
FR. BERNAS. While I agree with the lofty objectives of the
amendment proposed, I am afraid that the effect of the proposed
amendment is, in fact, to weaken the provisions on impeachment.
The amendment speaks of massive election frauds. We have a very
general principle in the Constitution which says that sovereignty
resides in the people and all government authority emanates from
them. And the sovereignty of the people is principally expressed in
the election process and in the referendum and plebiscite Congress. The Legislature has likewise called on the COMELEC to
processes. (Underscoring mine) call a special election simultaneously with the general elections in
May to fill the vacancy left by Vice-President Guingona (Joint
 See BERNAS, Note 5, at 1163.
[7]
Comment of the Solicitor General and the Department of Justice, p.
22, Annexes "E" and "F").
 Id., at 1162-1163.
[8]

 Annex "1," Memorandum of Respondents De Vera and Funa.

[20]
 De Leon vs. Esguerra, 153 SCRA 602 (1987).
[9]

 Comment of Respondents De Vera and Funa, Annex "2."

[21]
[10]
 A. ALTMAN, ARGUING ABOUT LAW (2001), p. 94.
 House Resolution No. 176, 11th Congress, 3rd Session (2001).
[22]
 Id. citing J. AGRESTO, THE SUPREME COURT AND
[11]

CONSTITUTIONAL DEMOCRACY (1984).

 Senate Resolution No. 82, 11th Congress, 3rd Session (2001) and
[23]

House Resolution No. 178, 11th Congress, 3rd Session (2001).

[12]
 4 Wall. 2, 18 L.Ed. 281 [1866].
 Senate Resolution No. 83, 11th Congress, 3rd Session (2001).
[24]
 Id., cited in the Dissenting opinion of Gutierrez, J. in Marcos vs.
[13]

Manglapus, 177 SCRA 668, 702 (1989).

 Memorandum of Respondent Ombudsman Aniano Desierto, pp.
[25]

12-13.
 T.M. COOLEY, II CONSTITUTIONAL LIMITATIONS, 8th ED.
[14]

(1927), P. 1349.
 Joint Comment of the Solicitor General and the Secretary of
[26]

Justice, p. 7.
[15]
 Article II. Section 3, CONSTITUTION.
 The ABS-CBN/SWS Survey conducted from 2-7 February 2001
[27]
[16]
 Article VII, Section 18, CONSTITUTION.
showed that 61% of Filipinos nationwide accepted the legitimacy of
the Arroyo administration.
[17]
 Annex "A, Petition, G.R. Nos. 146710-15.

[18]
 Annex "A-1" to Petition, G.R. Nos. 146710-15.

 The Solicitor Gemneral and the Secretary of Justice point out that
[19]

respondent Arroyo has signed the Solid Waste Management Bill into
law and nominated then Senator Teofisto Guingona, Jr. as Vice-
President, which nomination has been confirmed by both Houses of
 SEPARATE OPINION
PARDO, J.:
I concur in the result. In the above cases, the Court decided to
dismiss the petitions. Consequently, the court effectively declared
that on January 20, 2001, petitioner had resigned the office of the
president.[1] Thus, then Vice President Gloria Macapagal-Arroyo
succeeded to the presidency in a manner prescribed in the
Constitution.[2] She is a de jure president.[3] I only wish to add that
petitioner was "constrained to resign" the office. It has been held that
"resignation is defined as the act of giving up or the act of an officer
by which he declines his office and renounces the further right to use
it. To constitute a complete and operative act of resignation, the
officer or employee must show a clear intention to relinquish or
surrender his position accompanied by the act of
relinquishment."[4] Petitioner's act of "resignation", however, was
done in light of the reality that he could no longer exercise the
powers and duties of the presidency[5] and left "the seat of the
presidency of this country, for the sake of peace and in order to begin
the healing process of our nation."[6]
Hence, the succession to the presidency of then Vice President
Gloria Macapagal-Arroyo on January 20, 2001, was in accordance
with the Constitutional prescription.[7] She was the Vice-President of
the Philippines elected in the May 11, 1998 elections, proclaimed by
Congress on the basis of the certificates of canvass duly certified by
the Board of Canvassers of each province, city and district showing
that she garnered 12,667,252 million votes.[8]
On another tack, I reserved my vote on the question of petitioner's
claim of immunity from suit.
In G.R. Nos. 146710-15, the petition was to enjoin respondent
Ombudsman from conducting the preliminary investigation of six (6)
criminal complaints filed with his office against petitioner. In fact,
however, the cases were still at preliminary investigation stage.
To be sure, the Court likewise decided to dismiss the petition. It is
settled jurisprudence that prohibition or injunction, preliminary or
final, generally will not lie to restrain or enjoin a criminal
prosecution, with well-defined exceptions, such as a sham
preliminary investigation hastily conducted.[9] This Court
consistently has refrained from interfering with the exercise of the
powers of the Ombudsman and respects the independence inherent in
the Ombudsman who, beholden to no one, acts as the champion of
the people and the preserver of the integrity of the public service. [10]
The Court ruled that "there is not enough evidence to warrant this
Court to enjoin the preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer more than hostile
headlines to discharge his burden of proof."[11] Let me, however,
emphasize the warning given so beautifully written by the ponente in
his epilogue, thus:
"A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to a
new stage - - - the Office of the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more threatening. It is
the sacred duty of the respondent Ombudsman to balance the right of
the State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categroized as the "most
fundamental of all freedoms." To be sure, the duty of a prosecutor is
more to do justice and less to prosecute. His is the obligation to
insure that the preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint against what  Statement from President Joseph Ejercito Estrada, ponencia, p. 10.
[5]

Lord Bryce calls "the impatient vehemence of the majority." Rights

in a democracy are not decided by the mob whose judgment is  Ibid.
[6]

dictated by rage and not by reason. Nor are rights necessarily

resolved by the power of number for in a democracy, the dogmatism  Supra, Note 2.
[7]

of the majority is not and should never be the definition of the rule of
law. If democracy has proved to the best form of government, it is  Per Resolution of both Houses No. 1, adopted on May 29, 1998.
[8]

because it has respected the right of the minority to convince the

majority that it is wrong. Tolerance of multiformity of thoughts,  Brocka v. Enrile, 192 SCRA 183, 188-190 [1990]; Paderanga v.
[9]

however offensive they may be, is the key to man's progress from the Drilon, 196 SCRA 86, 90 [1991];
cave to civilization. Let us not throw away that key just to pander to
some people's prejudice."[12] [10]
 Espinosa v. Ombudsman, G.R. No. 135775, October 19, 2000.
Finally, I must expressly state that the Court's ruling dismissing the [11]
 Ponencia, pp. 63-64.
petitions shall not be construed as foreclosing the issue of immunity
and other presidential prerogatives as may be raised at the proper [12]
 Ponencia, pp. 65-66.
time, in a proper justiciable controversy. In short, petitioner still "has
the remedy" of assailing any adverse rulings of the Ombudsman
"before the proper court" with the facts and the evidence adduced
before it.

I also join Justice Vicente V. Mendoza in his separate concurring

opinion.

SEPARATE OPINION
 Ponencia, pp. 29-32.
[1]

 Article VII, Section 8, 1987 Constitution.

[2]
YNARES-SANTIAGO, J.:

 14th President of the Republic.

[3]

In the resolution of these consolidated petitions, the majority opinion

 Ortiz v. Commission on Elections, 162 SCRA 812, 819 [1988].
[4]
defined the issues, foremost among which is whether there exists a
justiciable controversy warranting the exercise by this Court of its
power of judicial review.
I concur with the majority that the present petitions do not pose a
political question. Indeed, the resolution of the more substantive
issues therein merely entail an interpretation of the constitutional
principles of freedom of speech and the right to assemble. Moreover,
the cases call for the application of the provision that:
The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them.[1]
However, I am constrained to write this separate concurring opinion
to express my concern and disquietude regarding the use of "people
power" to create a vacancy in the presidency.
At the outset, I must stress that there is no specific provision in the
Constitution which sanctions "people power," of the type used at
EDSA, as a legitimate means of ousting a public official, let alone
the President of the Republic. The framers of the Constitution have
wisely provided for the mechanisms of elections, constitutional
amendments, and impeachment as valid modes of transferring power
from one administration to the other. Thus, in the event the removal
of an incumbent President or any government official from his office
becomes necessary, the remedy is to make use of these constitutional
methods and work within the system. To disregard these
constitutionally prescribed processes as nugatory and useless instead
of making them effectual is to admit that we lack constitutional
maturity.
It cannot be overlooked that this Court's legitimation through
sufferance of the change of administration may have the effect of
encouraging People Power Three, People Power Four, and
People Power ad infinitum. It will promote the use of force and
mob coercion by activist groups expert in propaganda warfare to
intimidate government officials to resolve national problems only in
the way the group wants them to be settled. Even now, this Court is
threatened with the use of mob action if it does not immediately
proclaim respondent Arroyo as a permanent and de jure President,
brought to power through constitutionally valid methods and
constitutional succession. Totally baseless charges of bribery in
incredibly fantastic amounts are being spread by malicious and
irresponsible rumormongers.
People power to pressure Cabinet members, Congress, government
officials and even this Court is becoming a habit. It should not be
stamped with legitimacy by this Court.
When is the use of People Power valid and constitutional? When is
its use lawless? It bears stressing that never in the entire history of
our country's legal system has mob action or the forcible menthod to
seize power been constitutionally sanctioned, starting all the way
from the Instructions of President McKinley to the Second Philippine
Commission dated April 7, 1900 up to the 1987 Constitution. Surely,
the court cannot recognize "people power" as a substitute for
elections. Respondents are emphatic that there was no revolution.
However, nothing in the Constitution can define whatever they may
call the action of the multitude gathered at EDSA.
I agree with the majority opinion that rallies or street demonstrations
are avenues for the expression of ideas and grievances, and that they
provide a check against abuse and inefficiency. But in the removal of
erring public servants, the processes of the Constitution and the law
must be folowed. This Court should never validate the action of a
mob and declare it constitutional. This would, in the long run, leave
public officials at the mercy of the clamorous and vociferous
throngs.
I wish to emphasize that nothing that has been said in these
proceedings can be construed as a declaration that people power may
validly interrupt and lawfully abort on-going impeachment
proceedings. There is nothing in the Constitution to legitimize the
ouster of an incumbent President through means that are
unconstitutional or extra-constitutional. The constitutional principle
that sovereignty resides in the people refers to the exercise of
sovereign power within the bounds of that same Constitution, not
outside or against it.
The term "people power" is an amorphous and indefinable concept.
At what stage do people assembled en masse become a mob? And
when do the actions of a mob, albeit unarmed or well-behaved,
become people power? The group gathered at EDSA may be called a
crowd, a multitude, an assembly or a mob, but the Court has no
means of knowing to the point of judicial certainty[2] that the throng
gathered at EDSA was truly representative of the sovereign people.
There are 75 million Filipinos. Even assuming that there were
2,000,000 people gathered at EDSA, a generous estimate considering
the area of the site, that makes up for only two and two-thirds
percent (2.67%) of the population.
Revolution, or the threat of revolution, may be an effective way to
bring about a change of government, but it is certainly neither legal
nor constitutional. To avoid a resort to revolution the Constitution
has provisions for the orderly transfer of power from one
administration to the other.[3] People Power is not one of them. Its
exercise is outside of the Constitution.
Neither can the Court judicially determine that the throng massed at
EDSA can be called the "people." When the Constitution uses the
term "people" to define whom the Government may serve or protect,
[4]
 or who may enjoy the blessings of democracy,[5] or people's rights
which the military must respect, it refers to everybody living in the
Philippines, citizens and aliens alike, regardless of age or
status. When it refers to "people" vested with sovereignty, [6] or those
who may be called upon to render service,[7] or those imploring the
aid of Divine Providence,[8] or who may initiate amendments to the
Constitution,[9] honor the flag,[10] or ratify a change in the country's
name, anthem, or seal,[11]the reference is to citizens or, more
particularly, enfranchised citizens.
The writing of this opinion is also impelled in part as my personal
reaction to intemperate and rash demands that we should discuss the
issues raised to us without the benefit of careful deliberation and to
decide them with only one certain and guaranteed result.
Media comments that it should take only ten minutes for a rational
human brain to decide the constitutional legitimacy of the Arroyo
presidency; that the Court should not persist in stalling or hobbling,
otherwise hordes of angry demonstrators will descend on it; that the
Court should not digest the crap fed by an honest lawyer gone
wrong; and that if the Justices do not behave they will get lynched;
[12]
 may all be dismissed as evanescent and fleeting exercises of
journalistic license which turn to something else the following day.
However, if these are repeated and paraphrased on television, print,
and radio to a largely uncomprehending but receptive public, [13] or
even insinuated by otherwise responsible officials in moments of
political passion, comments of this nature sow contempt for the
constitutional system. They are destructive of the rule of law and the
democratic principles upon which the stability of government
depends.
The Philippines adheres to the rule of law. The Constitution fixes the
parameters for the assumption to the highest office of Presdient and
the exercise of its powers. A healthy respect for constitutionalism
calls for the interpretation of constitutional provisions according to
their established and rational connotations. The situation should
conform to the Constitution. The Constitution should not be adjusted
and made to conform to the situation.  CONSTITUTION, Article II, Section 4.
[7]

While I am against the resort to mob rule as a means of introducing  CONSTITUTION, Preamble.
[8]

change in government, the peculiar circumstances in the case at bar

compel me to agree that respondent Arroyo rightfully assumed the  CONSTITUTION, Article XVII, Section 2.
[9]

presidency as the constitutionally anointed successor to the office

vacated by petitioner. There was at that time an urgent need for [10]
 CONSTITUTION, Article XVI, Section 1.
the immediate exercise of presidential functions, powers and
prerogatives. The vacancy in the highest office was created when [11]
 CONSTITUTION, Article XVI, Section 2.
petitioner, succumbing to the overwhelming tumult in the streets as
well as the rapidly successive desertions and defections of his [12]
 Philippine Star, "Here's The Score," February 26, 2001, p. 9.
cabinet secretaries and military officers, left Malacañang Palace "for
the sake of peace and in order to begin the healing process of our [13]
 People's Tonight, headline story, February 28, 2001.
nation."[14]
[14]
 Joint comment, Annex "A".
Accordingly, I concur in the result of the majority ruling, that both
petitions should be DISMISSED.

 CONSTITUTION, Article II, Section 1.

[1]

 Javellana v. Executive Secretary, Opinion of Messrs. Justice

[2]

Makalintal and Castro, 50 SCRA 30 [1973]). SEPARATE OPINION

 CONSTITUTION, Article VII, Sections 7-12; Article XI, Sections

[3]

2-3; Article XVII, Sections 1-4.

SANDOVAL-GUTIERREZ, J.:
 CONSTITUTION, Article II, Section 4.
[4]

I concur in the result of the Decision of the Court.

 CONSTITUTION, Article II, Section 5.
[5]

Petitioner Joseph E. Estrada does not ask for restoration to the Office
 CONSTITUTION, Article II, Section 1.
[6]
of The President. He does not seek the ouster and exclusion of
respondent Gloria Macapagal-Arroyo from the position. He merely
prays for a decision declaring that she is holding the presidency only
in an acting capacity. He states that he is willing to give up the
claimed presidency provided, however, that the termination of his
term as President is done in the manner provided by law.
The sought-for judicial intercession is not for petitioner Estrada
alone. Respondent Arroyo claims she is the de jure President and
that petitioner Estrada has pro tanto passed into history, ousted and
legitimately replaced by her. She asserts that any attempt to revert
petitioner to the presidency is an exercise in futility.
However, the vehemence and passion of her comment and the
arguments of her counsel during the hearing on the petition leave
lingering apprehension on the legal contestability of her claim to the
presidency.
I am, therefore, constrained to write this separate opinion to express
my views on the basic issue of whether or not petitioner Estrada
resigned as President of the Philippines.
The facts which led to the transfer of power, while manuevered to
suit the conclusions desired by either party, are not in serious
dispute. It is in their interpretation where both parties are continents
apart.
Serious charges were leveled against petitioner Estrada involving
culpable violation of the Constitution, bribery, graft and corruption
and betrayal of public trust.
The charges, initiated and prosecuted by the House of
Representatives, were heard by the Senate, with the Chief Justice as
Presiding Officer, in an impeachment trial. The proceedings were
covered in their entirety by live television and radio and attracted the
widest, most intense, and riveted attention ever given to any TV or
radio program. Trial, heated and acrimonious, but at times
entertaining, was proceeding as provided in the Constitution when,
on January 16, 2001, it was abruptly suspended. The impeachment
session was thrown into turmoil when the Senate, by a vote of 11-10,
decided against the opening of an envelope which, the prosecution
insisted, contained vital evidence supporting the charges but which
the defense wanted suppressed being inadmissible and irrelevant.
Pandemonium broke out in the impeachment court. The contending
parties, the audience, and even the senator-judges gave vent to their
respective feelings and emotions.
The event was God-sent to petitioner Estrada's opponents. Earlier,
opposition leaders and the hierarchy of the Roman Catholic Church
had led street marches and assemblies in key Metro Manila centers
demanding his resignation or ouster. Protest actions were staged at
the same area in EDSA where the "People Power Revolution" of the
1986 was centered.
The withdrawal of support by top defense and military officers,
resignations of certain cabinet officers, public defections to the
protesters' cause by other key government officials, and an
everswelling throng at EDSA followed in swift succession.
The constitutional process of removal is through impeachment. In
fact, the proceedings for the impeachment of petitioner Estrada were
underway when an incident concerning the opening of an envelope
aborted the process. The proceedings were terminated, preventing
him from presenting his defenses.
Respondent Arroyo invoked petitioner's resignation as a reason for
her to be sworn in as President. She vigorously asserts that petitioner
Estrada acknowledged his permanent disability to govern; and that
his statement that he was leaving Malacañang Palace for the sake of
peace and the healing process is a confirmation of his resignation. legitimacy of her government.

It is a cardinal principle in Public Officers Law that a resignation Under the circumstances, this Court has to declare as a fact what in
must be voluntary and willingly.[1] It must also be express and fact exists. Respondent Gloria Macapagal - Arroyo is the de
definite. A resignation even if clear and unequivocal, if made under jure President of the Republic of the Philippines.
duress, is voidable and may be repudiated.

There can be no question that the so-called resignation of petitioner

Estrada is not expressed in clear terms. There is no single instance  Gonzales vs. Hernandez, 112 Phil. 165 (1961).
[1]

when he stated he was resigning. But the events prior to his departure
from Malacañang telecast nationwide constrained him to step down
from the Presidency. The sight of thousands of students and left-
leaning groups marching towards Malacañang and the presence there
of then AFP Chief of Staff Angelo Reyes clearly indicate that
petitioner had no option but to leave.

Anybody who watched the events on live television leading to

petitioner Estrada's hurried departure in a motor launch away from
the hordes marching from EDSA to Malacañang could declare
without hesitation that he was faced with imminent danger to his life
and family. Even viewers as far as Mindanao in the South or Batanes
in the North undoubtedly felt the duress, coercion, and threat of
impending violence. Indeed, it is safe to conclude that he was
compelled to "resign" or to leave the Presidency.
However, the legality or illegality of petitioner's so called resignation
has been laid to rest by the results that have taken place. Respondent
Arroyo immediately took her oath as President of the Republic of the
Philippines before Chief Justice Hilario G. Davide, Jr. On January
24, 2001, the House of Representatives issued House Resolution No.
175 expressing its full support to her administration. Likewise,
twelve members of the Senate signed a Resolution recognizing and
expressing support to the new government and of president Arroyo.
Moreover, the international community has likewise recognized the
EXTENDED EXPLANATION OF INHIBITION
PANGANIBAN, J.:
In response to the Petition to Recuse filed by petitioner on February
14, 2001, I announced immediately, prior to the Oral Argument, my
voluntary inhibition from these consolidated cases. In my February
15, 2001 letter addressed to the Court en banc, I explained that
although petitioner had not proven any legal ground for his request, I
was nonetheless voluntarily inhibiting myself for two reasons: (1) to
"hold myself above petitioner's reproach and suspicion" and (2) to
deprive "him or anyone else [of] any excuse to cast any doubt on the
integrity of these proceedings and of the decision that this Court may
render in these cases of transcendental importance to the nation." I
quote that letter in part, as follows:
"By his request for my recusation, petitioner - I take it - is of the
opinion that I should no longer participate further in the oral
argument today and in the deliberation and voting that will follow,
because I may have prejudged his cause. As I understand it, he
believes that he may not be able to convince me to alter my position
and vote in his favor or in any other manner that would deviate from
my earlier concurrence in the Chief Justice's action.
"Though I am ready to hear his arguments and firmly believe that I
have an open mind to consider his plea according to my best light
and to vote according to my conscience, I nonetheless deem it of
highest importance that, as a jurist, I must hold myself above
petitioner's `reproach and suspicion.'
"As he himself asserts (see p. 6 of his Petition for Recusation), my
voluntary inhibition "cannot be construed as an admission of
incapacity to render impartial rulings but merely illustrates the
teaching xxx of Section 1, Rule 137" of the Rules of Court.
"To conclude, I am voluntarily inhibiting myself pro hac vice, not
because petitioner has proven any legal ground therefor, but because
I do not wish to give him or anyone else any excuse to cast any doubt
on the integrity of these proceedings and of the decision that this
Court may render in these cases of transcendental importance to the
nation."
In spite of the foregoing, disquisition, my action has been questioned
by many people, including several well-meaning friends. Some have
even berated me for allegedly shirking from my sworn duty to decide
cases without fear or favor. I have therefore decided to write this
extended explanation of my inhibition.
Disqualification, Inhibition 
and Recusal Differentiated
Section 1 of Rule 137 of the Rules of court governs the
disqualification and the inhibition of judicial officials, including
members of the Supreme Court. It provides as follows:
"SECTION 1. Disqualification of judges. ¾ No judge or judicial
officer shall sit in any case in which he, or his wife or child, is
pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in
which he has presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.
"A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than
those mentioned above."
The first paragraph of the above-quoted Section governs the legal
grounds for compulsory disqualification. To disqualify is "to bar a
judge from hearing, a witness from testifying, a juror from sitting, or
a lawyer from appearing in a case because of legal objection to the
qualifications of the particular individual."[1]
The Code of Judicial Conduct further elaborate the above rule in this
manner:
"Rule 3.12 ¾ A judge should take no part in a proceeding where the
judge's impartiality might reasonably be questioned. These cases
include proceedings where:
(a) The judge has personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding;
(b) The judge served as executor, adminitrator, guardian, trustee or
lawyer in the case or matters in controversy, or a former associate of
the judge served as counsel during their association, or the judge or
lawyer was a material witness therein;
(c) The judge's ruling in a lower court is the subject of review;
(d) The judge is related by consanguinity or affinity to a party
litigant within the sixth degree or to counsel within the fourth degree;
(e) The judge knows that the judge's spouse or child has a financial
interest, as heir, legatee, creditor, fiduciary, or otherwise, in the
subject matter in controversy or in a party to the proceeding, or any
other interest that could be substantially affected by the outcome of
the proceeding."
A closer look at the construction of the aforequoted provisions
reveals their mandatory or compulsory nature. They clearly mandate
that "a judge should take no part in a proceeding," in which any of
the circumstances enumerated therein is present. Indeed, the court
explicitly stated in Garcia v. Dela Peña[2] that the first paragraph of
Section 1, Rule 137 of the Rules of Court, was compulsory.
The extent of sitting or taking part in a case was explained
in Re: Inhibition of Judge Rojas,[3] as follows:
"xxx. According to Black's Law Dictionary, to `sit' in a case means
`to hold court; to do any act of a judicial nature. To hold a session, as
of a court, grand jury, legislative body, etc. To be formally organized
and proceeding with the transaction of business.' The prohibition is
thus not limited to cases in which a judge hears the evidence of the
parties, but includes as well cases where he acts by resolving
motions, issuing orders and the like xxx. The purpose of the rule is to
prevent not only a conflict of interest but also the appearance of
impropriety on the part of the judge. A judge should take no part in a
proceeding where his impartiality might reasonably be questioned.
He should administer justice impartiality and without delay."
Rationalizing the rule, the Court explained:
"The rule on compulsory disqualification of a judge to hear a case
where, as in the instant case, the respondent judge is related to either
party within the sixth degree of consanguinity or affinity rests on the
salutary principle that no judge should preside in a case in which he
is not wholly free, disinterested, impartial and independent. A judge
has both the duty of rendering a just decision and the duty of doing it
in a manner completely free from suspicion as to its fairness and as
to his integrity. The law conclusively presumes that a judge cannot
objectively or impartially sit in such a case and, for that reason,
prohibits him and strikes at his authority to hear and decide it, in the
absence of written consent of all parties concerned. The purpose is to
preserve the people's faith and confidence in the courts of justice."
The rationale for the rule on the compulsory disqualificatioin of a
judge or judicial officer is predicated on the long-standing precept
that no judge should preside in a case in which he or she is not
wholly independent, disinterested or impartial. Judges should not
handle cases in which they might be perceived, rightly or wrongly, to
be susceptible to bias and partiality. The rule is aimed at preserving
at all times the people's faith and confidence in our courts, which are
essential to the effective administration of justice. [4]
Inhibition
While the disqualification of judges based on the specific grounds
provided by the Rules of Court and the Code of Judicial Conduct is
complusory, inhibition partakes of voluntariness on their part. It
arises from just or valid reasons tending to cast doubt on their proper
and impartial disposition of a case. The rule on inhibition is set forth
in the second paragraph of Rule 137 of the Rules of Court, which
provides:
`A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than
those mentioned above.'
Whether judges should inhibit themselves from a case rests on their
own "sound discretion." In Rosello v. Court of Appeals,[5] how such
discretion should be exercised was explained by the Supreme Court
in these words:
"As to the issue of disqualification[6] [based on the second paragraph
of Section 1, Rule 137 of the Rules of Court], this Court has ruled
that to disqualify or not to disqualify is a matter of conscience and is
addressed primarily to the sense of fairness and justice of the judge
concerned. Thus, the merre filing of an administrative case against
respondent [j]udge is not a ground for disqualifying him from
hearing the case, for if on every occasion the party apparently
aggrieved would be allowed to either stop the proceedings in order to
await the final decision on the desired disqualification, or demand
the immediate inhibition of the [j]udge on the basis alone of his
being so charged, many cases would have to be kept pending or
perhaps there would not be enough judges to handle all the cases
pending in all the courts. This Court has to be shown acts or conduct
of the judge clearly indicative of arbitrariness or prejudice before the
latter can be branded the stigma of being biased or partial." [7]
Alleged in CIR v. CA[8] were the grounds for the disqualification of
an associate justice of the Supreme court from participating in the
case. These alleged grounds were his having served under private
respondent's counsel when the latter was the solicitor general, and
their having had business relations in connection with the operation
of a small restaurant. Even if true, these were not regarded as
compulsory bases for his disqualification. Instead, the Court ruled:
"It is for him [the jurist] alone, therefore, to determine his
qualification."[9] On whether to disqualify him from participating in
the case or not, the Court took note of the old doctrine that when a
justice of the Court of Appeals or the Supreme Court is challenged,
"the magistrate sits with the court and the question is decided by it as
a body."[10]
Earlier on, the Court had the occasion to lay down the appropraite
guidelines in a situation where the judge's capacity to try and decide
a case fairly and judiciously would come to the fore by way of a
challenge from any one of the parties. It ruled as follows: [11]
"A judge may not be legally prohibited from sitting in a litigation.
But when suggestion is made of record that he might be induced to
act in favor of one party or with bias or prejudice against a litigant
arising out of circumstances reasonably capable of inciting such a
state of mind, he should conduct a careful self-examination. He
should exercise his discretion in a way that the people's faith in the
courts of justice is not impaired. A salutary norm is that he reflect on
the probability that a losing party might nurture at the back of his
mind the thought that the judge had unmeritoriously tilted the scales
of justice against him. That passion on the part of a judge may be
generated because of serious charges of misconduct against him by a
suitor or his counsel, is not altogether remote. He is a man, subject to
the frailties of other men. He should, therefore, exercise great care
and caution before making up his mind to act or withdraw from a suit
where that party or counsel is involved. He could in good grace
inhibit himself where that case could be heard by another judge and
where no appreciable prejudice would be occasioned to others
involved therein. On the result of his decisions to sit or not to sit may
depend to a great extent the all-important confidence in the
impartiality of the judiciary. If after reflection he should resolve to
voluntarily desist from sitting in a case where his motives or fairness
might be seriously impugned, his action is to be interpreted as giving
meaning and substance to the second paragraph of Section 1, Rule
137. He serves the cause of the law who forestalls miscarriage of
justice."
In a string of cases, the Supreme Court has said that bias and
prejudice, to be considered valid reasons for the voluntary inhibition
of judges, must be proved with clear and convincing evidence. Bare
allegations of partiality and prejudgment will not suffice. These
cannot be presumed, especially if weighed against the sacred
obligation of judges whose oaths of office require them to administer
justice without respect to person and to do equal right to the poor and
the rich.[12]
The Court has also said that, to warrant the judge's inhibition from
the case, bias or prejudice must be shown to have stemmed from an
extrajudicial source, and that it would result in a disposition on the
merits on some basis other than what the judge learned from
participating in the case. As long as opinions formed in the course of
judicial proceedings are based on the evidence presented and the
conduct observed by the judge, they will not prove personal bias or
prejudice, even if found later on as erroneous. In addition to palpable
error that may be inferred from the decision or the order itself,
extrinsic evidence is required to establish bias, bad faith, malice or
corrupt purpose.[13]
Hence, the Court exhorted in Go v. Court of Appeals[14] that the rule
should "not be used cavalierly to suit a litigant's personal designs or
to defeat the ends of justice." It deemed as intolerable acts of
litigants who, for any conceivable reason, would seek to disqualify a
judge for their own purposes under a plea of bias, hostility, or
prejudgment. It further held that it did not approve of some litigants'
tactic of filing baseless motions for disqualification as a means of
delaying the case or of forum-shopping for a more friendly judge. [15]
Moreover, in Aparicio v. Andal,[16] the Court said:
"Efforts to attain fair, just and impartial trial and decision, have a
natural and alluring appeal. But, we are not licensed to indulge in
unjustified assumptions, or make a speculative approval [of] this
ideal. It ill behooves this Court to tar and feather a judge as biased or
prejudiced, simply because counsel for a party litigant happens to
complain against him. As applied here, respondent judge has not as
yet crossed the line that divides partiality and impartiality. He has
not thus far stepped to one side of the fulcrum. No act or conduct of
his would show arbitrariness or prejudice. Therefore, we are not to
assume what respondent judge, not otherwise legally disqualified,
will do in a case before him. We have had occasion to rule in a
criminal case that a charge made before trial that a party `will not be
given a fair, impartial and just hearing' is `premature.' Prejudice is
not to be presumed. Especially if weighed against a judge's legal
obligation under his oath to administer justice without respect to
person and to equal right to the poor and the rich.' To disqualify or
not to disqualify himself then, as far as respondent judge is
concerned, is a matter of conscience."
There is however, a caveat in the grant of motions to disqualify or
inhibit, even if founded on a compulsory ground. In Araneta v.
Dinglasan,[17] the Motion to disqualify Justice Sabino Padilla from
participating in the case was grounded on the fact that as justice
secretary he had advised the President on the question of emergency
powers. In denying the Motion, which was filed only after a Decision
had been promulgated, the Court ruled that "a litigant x x x cannot be
permitted to speculate upon the action of the court and raise an
objection of this sort after a decision has been rendered." [18]
In Limpin Jr. v. IAC,[19] filed after the decision had already become
final and executory was a Motion for Inhibition of justices who had
been associated with the law firm which had acted as counsel to a
party. In that case, the Court reiterated that a motion for
disqualification must be denied, if filed after a member of the Court
had already given an opinion on the merits of the case.
Recusation/Recusal
Recusation or recusal is the process in which, "because of self
interest, bias or prejudice," on the objection of either of the parties,
disqualified from hearing a lawsuit; or one in which they disqualify
themselves therefrom.[20] "In the civil law, [it is] a species of
exception or plea to the jurisdiction, to the effect that the particular
judge is disqualified from hearing the cause by reason of interest or
prejudice."[21]
From the definition of recusation or recusal, it can be easily
discerned that the term is hardly any different from disqualification,
except that it refers more specifically to judges. Thus, Melinkoff
makes this simple distinction: "Unlike the multiple targets of
a motion to disqualify, a motion to recuse is usually restricted to
judges; it is sometimes used against a lawyer in an official position,
e.g., a district attorney charged with conflict of interest, but not
against lawyers generally."[22]
CONCLUSION
In sum, while disqualification and recusal are sourced from legal
grounds provided in the Rules of Court and the Code of Judicial
Conduct, inhibition is based on the exercise of sound judicial
discretion depending on the circumstances of each case. Because all
these, however, are rules of procedure, the Court has the final say.
As the constitutional authority in such matters, it may in fact compel
disqualification or reject offers of inhibition, on such grounds and
under such circumstances as it may deem appropriate.
Thus, in Veterans Federation Party v. Comelec[23] (the party-list
cases), the Supreme Court rejected my offer to inhibit myself in a
Resolution announced during the Oral Argument on July 1, 1999. It
did so for the following reasons: (1) I was merely a voluntary non-
compensated officer of the nonprofit Philippine Chamber of
Commerce and Industry (PCCI); (2) the case and its antecedents
were not extant during my incumbency at PCCI; and (3) important
constitutional questions were involved, and the Court believed that
all justices should as much as possible participate and vote. [24]
The foregoing discussion shows the following:
(1) My nonparticipation in these consolidated cases did not arise
from any legal ground showing partiality or bias in favor of or
against petitioner.
(2) I voluntarily resorted to nonparticipation in order "to hold myself
above petitioner's reproach" and to deprive "him or anyone else [of]
any excuse to cast doubt on the integrity of these proceedings and of
the decision that this Court may render in these cases of
transcendental importance to the nation."
(3) My nonparticipation applies only to the instant consolidated
cases, pro hac vice, and not necessarily to all other future cases
involving any of the herein parties.
 D. Melinkoff, Melinkoff's Dictionary Of American Legal Usage,
[1]
p. 174, 1992 ed.
 229 SCRA 766, February 9, 1994.
[2]
 [14]
 Supra, at p. 417.
 298 SCRA 306, 310, October 30, 1998, per Mendoza, J. (citations
[3]

omitted).  Ibid., citing People v. Serrano, 203 SCRA 171, 186-87, October

[15]

28, 1991.
 Perez v. Suller, 249 SCRA 665, November 6, 1995; Urbanes Jr. v.
[4]

CA, 236 SCRA 72, August 30, 1994; Go v. Court of Appeals, 221  175 SCRA 569, July 25, 1989, Sarmiento, J.; citing Pimentel v.
[16]

SCRA 397, April 7, 1993. Salanga, 21 SCRA 160, September 18, 1967.

 168 SCRA 459, 470, December 14, 1988, per Fernan CJ. See
[5] [17]
 84 Phil 368, 431-432, August 26, 1949.
also Aparicio v. Andal, 175 SCRA 569, July 25, 1989.
 Citing Government of Philippine Islands v. Heirs of Abella, 49
[18]

 More aptly, "inhibition."

[6]
Phil 374.

 Citing Gabol v. Riodique, 65 SCRA 505.

[7] [19]
 161 SCRA 83, 97, May 5, 1988.

 267 SCRA 599, February 6, 1997, per curiam.

[8] [20]
 Black's Law Dictionary 1277, 6th ed. (1990).

 Ibid. at 606.
[9] [21]
 Ibid.

 Ibid., citing Jurado & Co. v. Hongkong & Shanghai Banking

[10]
 D. Melinkoff, Melinkoff's Dictionary Of American Legal Usage
[22]

Corp., 1 Phil 395. See also Hanrahan v. Hampton, 446 US 1301, 64 174 (1992).

L Ed 2d 214, 100 S Ct 1868; April 30, 1980.
[23]
 GR Nos. 136781, 136786 and 136795, October 6, 2000.
 Pimentel v. Salanga, 21 SCRA 160, 167-68, September 18, 1967,
[11]

per Sanchez, J.; reiterated in Mateo v. Villaluz, 50 SCRA [24]

 TSN (GR Nos. 136781, 136786 and 136795), July 1, 1999, pp. 3-
18; Dimacuha v. Concepcion, 202 Phil 961, September 30, 1982. 4.

 People v. CA, 309 SCRA 705, July 2, 1999; Soriano v.

[12]

Angeles, GR No. 109920, August 31, 2000; Go v. CA, 221 SCRA

397, April 7, 1993. Batas.org 

 Aleria Jr. v. Velez, 298 SCRA 611, November 16, 1998, per

[13]

Quisumbing, J.; Soriano v. Angeles, ibid.
 Supreme Court of the Philippines
530 Phil. 189  assignment. Their aim was to destabilize the government. The
EN BANC
G.R. NO. 164007, August 10, 2006
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO,
LT. (SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO,
LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT.
NICANOR FAELDON, LT. (SG) MANUEL CABOCHAN, ENS.
ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, AND
1LT. JONNEL SANGGALANG, PETITIONERS, VS. GEN.
NARCISO ABAYA, IN HIS CAPACITY AS CHIEF OF STAFF
OF THE ARMED FORCES OF THE PHILIPPINES, AND B.
GEN. MARIANO M. SARMIENTO, JR., IN HIS CAPACITY
AS THE JUDGE ADVOCATE GENERAL OF THE JUDGE
ADVOCATE GENERAL'S OFFICE (JAGO), RESPONDENTS.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a
temporary restraining order) filed by the above-named members of
the Armed Forces of the Philippines (AFP), herein petitioners,
against the AFP Chief of Staff and the Judge Advocate General,
respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received
intelligence reports that some members of the AFP, with high-
powered weapons, had abandoned their designated places of
President then directed the AFP and the Philippine National Police
(PNP) to track and arrest them.
On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed
junior officers and enlisted men of the AFP – mostly from the elite
units of the Army's Scout Rangers and the Navy's Special Warfare
Group – entered the premises of the Oakwood Premier Luxury
Apartments on Ayala Avenue, Makati City. They disarmed the
security guards and planted explosive devices around the building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red
armbands emblazoned with the emblem of the "Magdalo" faction of
the Katipunan.[1] The troops then, through broadcast media,
announced their grievances against the administration of President
Gloria Macapagal Arroyo, such as the graft and corruption in the
military, the illegal sale of arms and ammunition to the "enemies" of
the State, and the bombings in Davao City intended to acquire more
military assistance from the US government. They declared their
withdrawal of support from their Commander-in-Chief and
demanded that she resign as President of the Republic. They also
called for the resignation of her cabinet members and the top brass of
the AFP and PNP.
About noontime of the same day, President Arroyo issued
Proclamation No. 427 declaring a state of rebellion, followed by
General Order No. 4 directing the AFP and PNP to take all necessary
measures to suppress the rebellion then taking place in Makati City.
She then called the soldiers to surrender their weapons at five o'clock
in the afternoon of that same day.
In order to avoid a bloody confrontation, the government sent
negotiators to dialogue with the soldiers. The aim was to persuade
them to peacefully return to the fold of the law. After several hours
of negotiation, the government panel succeeded in convincing them
to lay down their arms and defuse the explosives placed around the
premises of the Oakwood Apartments. Eventually, they returned to
their barracks.
A total of 321 soldiers, including petitioners herein, surrendered to
the authorities.
The National Bureau of Investigation (NBI) investigated the incident
and recommended that the military personnel involved be charged
with coup d'etat defined and penalized under Article 134-A of the
Revised Penal Code, as amended. On July 31, 2003, the Chief State
Prosecutor of the Department of Justice (DOJ) recommended the
filing of the corresponding Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles
of War, respondent General Narciso Abaya, then AFP Chief of Staff,
ordered the arrest and detention of the soldiers involved in the
Oakwood incident and directed the AFP to conduct its own separate
investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court
(RTC), Makati City an Information for coup d'etat[2] against those
soldiers, docketed as Criminal Case No. 03-2784 and eventually
raffled off to Branch 61, presided by Judge Romeo F. Barza.
[3]
 Subsequently, this case was consolidated with Criminal Case No.
03-2678, involving the other accused, pending before Branch 148 of
the RTC, Makati City, presided by Judge Oscar B. Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a
reinvestigation of Criminal Case No. 03-2784.
On the same date, respondent Chief of Staff issued Letter Order No.
625 creating a Pre-Trial Investigation Panel tasked to determine the
propriety of filing with the military tribunal charges for violations of
the Articles of War under Commonwealth Act No. 408, [4] as
amended, against the same military personnel. Specifically, the
charges are: (a) violation of Article 63 for disrespect toward the
President, the Secretary of National Defense, etc., (b) violation of
Article 64 for disrespect toward a superior officer, (c) violation of
Article 67 for mutiny or sedition, (d) violation of Article 96 for
conduct unbecoming an officer and a gentleman, and (e) violation of
Article 97 for conduct prejudicial to good order and military
discipline.
Of the original 321 accused in Criminal Case No. 03-2784, only 243
(including petitioners herein) filed with the RTC, Branch 148 an
Omnibus Motion praying that the said trial court assume jurisdiction
over all the charges filed with the military tribunal. They invoked
Republic Act (R.A.) No. 7055.[5]
On September 15, 2003, petitioners filed with the Judge Advocate
General's Office (JAGO) a motion praying for the suspension of its
proceedings until after the RTC shall have resolved their motion to
assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its
Initial Report to the AFP Chief of Staff recommending that the
military personnel involved in the Oakwood incident be charged
before a general court martial with violations of Articles 63, 64, 67,
96, and 97 of the Articles of War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a
reinvestigation, found probable cause against only 31 (petitioners
included) of the 321 accused in Criminal Case No. 03-2784.
Accordingly, the prosecution filed with the RTC an Amended
Information.[6]
In an Order dated November 14, 2003, the RTC admitted the
Amended Information and dropped the charge of coup d'etat against
the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation
Panel submitted its Final Pre-Trial Investigation Report [7] to the
JAGO, recommending that, following the "doctrine of absorption,"
those charged with coup d'etat before the RTC should not be charged
before the military tribunal for violation of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order[8] stating
that "all charges before the court martial against the accused" are
hereby declared not service-connected, but rather absorbed and in
furtherance of the alleged crime of coup d'etat." The trial court then
proceeded to hear petitioners' applications for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-
in-charge of the JAGO, reviewed the findings of the Pre-Trial
Investigation Panel. He recommended that 29 of the officers
involved in the Oakwood incident, including petitioners, be
prosecuted before a general court martial for violation of Article 96
(conduct unbecoming an officer and a gentleman) of the Articles of
War.
On June 17, 2004, Colonel Magno's recommendation was approved
by the AFP top brass. The AFP Judge Advocate General then
directed petitioners to submit their answer to the charge. Instead of
complying, they filed with this Court the instant Petition for
Prohibition praying that respondents be ordered to desist from
charging them with violation of Article 96 of the Articles of War in
relation to the Oakwood incident.[9]
Petitioners maintain that since the RTC has made a determination in
its Order of February 11, 2004 that the offense for violation of
Article 96 (conduct unbecoming an officer and a gentleman) of the
Articles of War is not service-connected, but is absorbed in the crime
of coup d'etat, the military tribunal cannot compel them to submit to
its jurisdiction.
The Solicitor General, representing the respondents, counters that
R.A. No. 7055 specifies which offenses covered by the Articles of
War are service-connected. These are violations of Articles 54 to 70,
72 to 92, and 95 to 97. The law provides that violations of these
Articles are properly cognizable by the court martial. As the charge
against petitioners is violation of Article 96 which, under R.A. No.
7055 is a service-connected offense, then it falls under the
jurisdiction of the court martial.
Subsequently, petitioners filed with this Court a Supplemental
Petition raising the additional issue that the offense charged before
the General Court Martial has prescribed. Petitioners alleged therein
that during the pendency of their original petition, respondents
proceeded with the Pre-Trial Investigation for purposes of charging
them with violation of Article 96 (conduct unbecoming an officer
and a gentleman) of the Articles of War; that the Pre-Trial
Investigation Panel then referred the case to the General Court
Martial; that "almost two years since the Oakwood incident on July
27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned,
and this was done under questionable circumstances;" [10] that in the
hearing of July 26, 2005, herein petitioners moved for the dismissal
of the case on the ground that they were not arraigned within the
prescribed period of two (2) years from the date of the commission
of the alleged offense, in violation of Article 38 of the Articles of
War;[11] that "the offense charged prescribed on July 25,
2005;"[12] that the General Court Martial ruled, however, that "the
prescriptive period shall end only at 12:00 midnight of July 26,
2005;"[13] that "(a)s midnight of July 26, 2005 was approaching and it
was becoming apparent that the accused could not be arraigned, the
prosecution suddenly changed its position and asserted that 23 of the
accused have already been arraigned;"[14] and that petitioners moved
for a reconsideration but it was denied by the general court martial in
its Order dated September 14, 2005.[15]
In his Comment, the Solicitor General prays that the Supplemental
Petition be denied for lack of merit. He alleges that "contrary to
petitioners' pretensions, all the accused were duly arraigned on
July 13 and 18, 2005."[16] The "(r)ecords show that in the hearing on
July 13, 2005, all the 29 accused were present" and, "(o)n that day,
Military Prosecutor Captain Karen Ong Jags read the Charges and
Specifications from the Charge Sheet in open court (pp. 64, TSN,
July 13, 2005)."[17]
The sole question for our resolution is whether the petitioners are
entitled to the writ of prohibition.
There is no dispute that petitioners, being officers of the AFP, are
subject to military law. Pursuant to Article 1 (a) of Commonwealth
Act No. 408, as amended, otherwise known as the Articles of War,
the term "officer" is "construed to refer to a commissioned officer."
Article 2 provides:
Art. 2. Persons Subject to Military Law. – The following persons are
subject to these articles and shall be understood as included in the
term "any person subject to military law" or "persons subject to
military law," whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed
Forces of the Philippines or of the Philippine Constabulary, all
members of the reserve force, from the dates of their call to active
duty and while on such active duty; all trainees undergoing military
instructions; and all other persons lawfully called, drafted, or ordered
into, or to duty or for training in the said service, from the dates they
are required by the terms of the call, draft, or order to obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other
persons subject to military law, including members of the Citizens
Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code, other special penal laws, or
local government ordinances, regardless of whether or not civilians
are co-accused, victims, or offended parties, which may be natural or
juridical persons, shall be tried by the proper civil court, except
when the offense, as determined before arraignment by the civil
court, is service-connected, in which case, the offense shall be
tried by court-martial, Provided, That the President of the
Philippines may, in the interest of justice, order or direct at any time
before arraignment that any such crimes or offenses be tried by the
proper civil courts.
As used in this Section, service-connected crimes or offenses shall
be limited to those defined in Articles 54 to 70, Articles 72 to 92,
and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.
In imposing the penalty for such crimes or offenses, the court-martial
may take into consideration the penalty prescribed therefor in the
Revised Penal Code, other special laws, or local government
ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous.
First, it lays down the general rule that members of the AFP and
other persons subject to military law, including members of the
Citizens Armed Forces Geographical Units, who commit crimes or
offenses penalized under the Revised Penal Code (like coup d'etat),
other special penal laws, or local ordinances shall be tried by the
proper civil court. Next, it provides the exception to the general
rule, i.e., where the civil court, before arraignment, has determined
the offense to be service-connected, then the offending soldier
shall be tried by a court martial. Lastly, the law states an exception
to the exception, i.e., where the President of the Philippines, in the
interest of justice, directs before arraignment that any such crimes
or offenses be tried by the proper civil court.
The second paragraph of the same provision further identifies the
"service-connected crimes or offenses" as "limited to those
defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to
97" of the Articles of War. Violations of these specified Articles
are triable by court martial. This delineates the jurisdiction
between the civil courts and the court martial over crimes or offenses
committed by military personnel.
Such delineation of jurisdiction by R.A. No. 7055 is necessary to
preserve the peculiar nature of military justice system over military
personnel charged with service-connected offenses. The military
justice system is disciplinary in nature, aimed at achieving the
highest form of discipline in order to ensure the highest degree of
military efficiency.[18] Military law is established not merely to
enforce discipline in times of war, but also to preserve the tranquility
and security of the State in time of peace; for there is nothing more
dangerous to the public peace and safety than a licentious and
undisciplined military body.[19] The administration of military justice
has been universally practiced. Since time immemorial, all the
armies in almost all countries of the world look upon the power of
military law and its administration as the most effective means of
enforcing discipline. For this reason, the court martial has become
invariably an indispensable part of any organized armed forces, it
being the most potent agency in enforcing discipline both in peace
and in war.[20]
Here, petitioners are charged for violation of Article 96 (conduct
unbecoming an officer and a gentleman) of the Articles of War
before the court martial, thus:
All persons subject to military law, did on or about 27 July 2003 at
Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully
and feloniously violate their solemn oath as officers to defend the
Constitution, the law and the duly-constituted authorities and
abused their constitutional duty to protect the people and the
Stateby, among others, attempting to oust the incumbent duly-
elected and legitimate President by force and violence, seriously
disturbing the peace and tranquility of the people and the nation they
are sworn to protect, thereby causing dishonor and disrespect to
the military profession, conduct unbecoming an officer and a
gentleman, in violation of AW 96 of the Articles of War.
CONTRARY TO LAW. (Underscoring ours)
Article 96 of the Articles of War[21] provides:
ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any
officer, member of the Nurse Corps, cadet, flying cadet, or
probationary second lieutenant, who is convicted of conduct
unbecoming an officer and a gentleman shall be dismissed from the
service. (Underscoring ours)
We hold that the offense for violation of Article 96 of the Articles of
War is service-connected. This is expressly provided in Section 1
(second paragraph) of R.A. No. 7055. It bears stressing that the
charge against the petitioners concerns the alleged violation of their
solemn oath as officers to defend the Constitution and the duly-
constituted authorities. Such violation allegedly caused dishonor
and disrespect to the military profession. In short, the charge has a
bearing on their professional conduct or behavior as military officers.
Equally indicative of the "service-connected" nature of the offense is
the penalty prescribed for the same " dismissal from the service "
imposable only by the military court. Such penalty is purely
disciplinary in character, evidently intended to cleanse the military
profession of misfits and to preserve the stringent standard of
military discipline.
Obviously, there is no merit in petitioners' argument that they can no
longer be charged before the court martial for violation of Article 96
of the Articles of War because the same has been declared by the
RTC in its Order of February 11, 2004 as "not service-connected, but
rather absorbed and in furtherance of the alleged crime of coup
d'etat," hence, triable by said court (RTC). The RTC, in making such
declaration, practically amended the law which expressly vests in the
court martial the jurisdiction over "service-connected crimes or
offenses." What the law has conferred the court should not take
away. It is only the Constitution or the law that bestows jurisdiction
on the court, tribunal, body or officer over the subject matter or
nature of an action which can do so.[22] And it is only through a
constitutional amendment or legislative enactment that such act can
be done. The first and fundamental duty of the courts is merely
to apply the law "as they find it, not as they like it to
be."[23] Evidently, such declaration by the RTC constitutes grave
abuse of discretion tantamount to lack or excess of jurisdiction and
is, therefore, void.  Art. 70. Arrest or Confinement.
In Navales v. Abaya.,[24] this Court, through Mr. Justice Romeo J.
Callejo, Sr., held:
We agree with the respondents that the sweeping declaration made
by the RTC (Branch 148) in the dispositive portion of its Order dated
February 11, 2004 that all charges before the court-martial against
the accused were not service-connected, but absorbed and in
furtherance of the crime of coup d'etat, cannot be given effect. x x x,
such declaration was made without or in excess of jurisdiction;
hence, a nullity.
The second paragraph of the above provision (referring to Section 1
of R.A. No. 7055) explicitly specifies what are considered "service-
connected crimes or offenses" under Commonwealth Act No. 408, as
amended, also known as the Articles of War, to wit:
Articles 54 to 70:
Art. 54. Fraudulent Enlistment.
Art. 55.Officer Making Unlawful Enlistment.
Art. 56. False Muster.
Art. 57. False Returns.
Art. 58. Certain Acts to Constitute Desertion.
Art. 59. Desertion.
Art. 60. Advising or Aiding Another to Desert.
Art. 61. Entertaining a Deserter.
Art. 62. Absence Without Leave.
Art. 63. Disrespect Toward the President, Vice-President, Congress
of the Philippines, or Secretary of National Defense.
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Articles 72 to 92:
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public Service.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 83. Spies.
Art. 84. Military Property.–Willful or Negligent Loss, Damage or
wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of Military Property Issued
to Soldiers.
Art. 86. Drunk on Duty.
Art. 87. Misbehavior of Sentinel.
Art. 88. Personal Interest in Sale of Provisions.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 89. Intimidation of Persons Bringing Provisions.
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Art. 91. Provoking Speeches or Gestures.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and Gentleman.
Art. 97. General Article.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts
the jurisdiction over the foregoing offenses. x x x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest
the military courts of jurisdiction to try cases involving violations of
Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the
Articles of War as these are considered"service-connected crimes or
offenses." In fact, it mandates that these shall be tried by the court-
martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio
during the deliberation of this case is worth quoting, thus:
The trial court aggravated its error when it justified its ruling by
holding that the charge of Conduct Unbecoming an Officer and a
Gentleman is "absorbed and in furtherance to the alleged crime
of coup d'etat." Firstly, the doctrine of "absorption of crimes" is
peculiar to criminal law and generally applies to crimes punished by
the same statute,[25] unlike here where different statutes are involved.
Secondly, the doctrine applies only if the trial court has jurisdiction
over both offenses. Here, Section 1 of R.A. 7055 deprives civil
courts of jurisdiction over service-connected offenses, including
Article 96 of the Articles of War. Thus, the doctrine of absorption of
crimes is not applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184
[1975]), applicable only to military personnel because the military
constitutes an armed organization requiring a system of discipline
separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83
[1953]). Military personnel carry high-powered arms and other lethal
weapons not allowed to civilians. History, experience, and the nature
of a military organization dictate that military personnel must be
subjected to a separate disciplinary system not applicable to unarmed
civilians or unarmed government personnel.
A civilian government employee reassigned to another place by his
superior may question his reassignment by asking a temporary
restraining order or injunction from a civil court. However, a soldier
cannot go to a civil court and ask for a restraining or injunction if his
military commander reassigns him to another area of military
operations. If this is allowed, military discipline will collapse.
xxx
This Court has recognized that courts-martial are instrumentalities of
the Executive to enable the President, as Commander-in-Chief, to
effectively command, control, and discipline the armed forces
(see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrop's
Military Law and Precedents, 2nd edition, p. 49). In short, courts-
martial form part of the disciplinary system that ensures the
President's control, and thus civilian supremacy, over the military. At
the apex of this disciplinary system is the President who exercises
review powers over decisions of courts-martial (citing Article 50 of
the Articles of War; quoted provisions omitted).
xxx
While the Court had intervened before in courts-martial or similar
proceedings, it did so sparingly and only to release a military
personnel illegally detained (Ognir v. Director of Prisons, 80 Phil.
401 [1948] or to correct objectionable procedures (Yamashita v.
Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-
martial proceedings on the ground that the offense charged "is
absorbed and in furtherance of" another criminal charge pending
with the civil courts. The Court may now do so only if the offense
charged is not one of the service-connected offenses specified in
Section 1 of RA 7055. Such is not the situation in the present case.
With respect to the issue of prescription raised by petitioners in their
Supplemental Petition, suffice it to say that we cannot entertain the
same. The contending parties are at loggerheads as to (a) who
among the petitioners were actually arraigned, and (b) the dates
of their arraignment. These are matters involving questions of fact,
not within our power of review, as we are not a trier of facts. In a
petition for prohibition, such as the one at bar, only legal issues
affecting the jurisdiction of the tribunal, board or officer involved  Now Associate Justice of the Court of Appeals.
[3]

may be resolved on the basis of the undisputed facts.[26]

 Entitled "An Act for Making Further and More Effectual Provision
[4]

Clearly, the instant petition for prohibition must fail. The office of
prohibition is to prevent the unlawful and oppressive exercise of
authority and is directed against proceedings that are done without or
in excess of jurisdiction, or with grave abuse of discretion, there
for the National Defense by Establishing a System of Military Justice
for Persons Subject to Military Law."
 Entitled "An Act Strengthening Civilian Supremacy Over The
[5]

being no appeal or other plain, speedy, and adequate remedy in the
ordinary course of law.[27]Stated differently, prohibition is the remedy
to prevent inferior courts, corporations, boards, or persons from
usurping or exercising a jurisdiction or power with which they have
not been vested by law.[28]
Military By Returning To The Civil Courts The Jurisdiction Over
Certain Offenses Involving Members Of The Armed Forces Of The
Philippines, Other Persons Subject To Military Law, And The
Members Of The Philippine National Police, Repealing For The
Purpose Certain Presidential Decrees."

In fine, this Court holds that herein respondents have the authority in  Rollo, pp. 176-179.
[6]

convening a court martial and in charging petitioners with violation

of Article 96 of the Articles of War.  Id., pp. 370-380.
[7]

WHEREFORE, the instant petition for prohibition is DISMISSED.  Id., pp. 207-209.
[8]

SO ORDERED.  Id., pp. 14-15.

[9]

Panganiban, C.J., Puno, Quisumbing, Carpio, Austria-Martinez, [10]

 Par. 4, Supplemental Petition, p. 4.
Corona, Carpio-Morales, Garcia and Velasco, Jr., JJ., concur.
Ynares-Santiago, J., joins Separate (Concurring Dissenting) Opinion  Article 38 of the Articles of War partly provides:
[11]

of J. Tinga. "Article 38. As to Time. – Except for desertion or murder committed

Callejo, Sr., J, Please see Concurring Opinion.
Azcuna, J., concurs in the Separate Opinion of Justice Tinga.
Tinga, J., Pls. see Separate(concurring/dissenting) Opinion
in time of war, or for mutiny, no person subject to military law shall
be liable to be tried or punished by a court-martial for any crime or
offense committed more than two years before the arraignment of
such person: x x x."
[12]
 Pars. 8, 18, Supplemental Petition, pp. 5, 10.

 A group which spearheaded the Revolution of 1896 against Spain. 

[1] [13]
 Par. 9, id. 

 As defined and penalized under Article 134-A of the Revised

[2]
 Par. 10, id. Petitioners stated, under this footnote, that the
[14]

Penal Code, as amended. "(r)ulings before the General Court Martial were done orally;
unavailability of the TSN for the July 26, 2005 hearing."  SCRA 139, 160-161.

 Par. 14, id.

[15]
 Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as
[27]

amended; Vergara v. Rugue, No. L-32984, August 26, 1977, 78

 Comment, p. 10.
[16]
SCRA 312.

 Id., p. 18.
[17]
 Matuguina Integrated Wood Products, Inc. v. Court of Appeals,
[28]

G.R. No. 98310, October 24, 1996, 263 SCRA 490.

 Gloria, PHILIPPINE MILITARY LAW Annotated, revised
[18]

edition, p. 3.

 Id.
[19]

 Id., pp. 4-5.

[20]
CONCURRING OPINION
 Commonwealth Act No. 408, as amended by Republic Act No.
[21]
CALLEJO, SR., J.:
242 (approved on June 12, 1948).
I concur with the encompassing ponencia of Madame Justice
 Arnado v.Buban, A.M. No. MTJ-04-1543, May 31, 2004, 430
[22]
Angelina Sandoval-Gutierrez ordering the dismissal of the petition.
SCRA 382, 386; Republic v. Estipular, G.R. No. 136588, July 20,
However, I find it necessary to elucidate on my opinion relative to
2000, 336 SCRA 333, 340.
the submission of petitioners that the punitive act for conduct
unbecoming an officer and a gentleman defined in Article 96 of the
 Resins, Inc. v. Auditor General, G.R. No. 17888, October 29,
[23]
Articles of War is absorbed by coup d'etat, a political felony,
1968, 25 SCRA 754.
especially in light of the opinion of the Pre-Trial Investigation Panel
that the punitive act as well as these service-connected punitive acts
 G.R. Nos. 162318 and 162341, October 25, 2004, 441 SCRA 393,
[24]
defined in Articles 63, 64, 96 and 97 of the Articles of War, are
409-421. 
indeed absorbed by coup d'etat.
 E.g., Murder (Article 248) and Robbery (Articles 294-295)
[25]
The charge against petitioners reads:
absorbed by Rebellion (Article 134) of the Revised Penal Code
Violation of Article 96
(People v. Hernandez, 99 Phil. 515 [1956]; Illegal Possession of
Marijuana (Section 8, Republic Act No. 6425) absorbed by Illegal
All persons subject to military law, did on or about 27 July 2003 at
Sale of Marijuana (Section 4, Republic Act No. 6425) (People v. De
Oakwood Hotel, Makati City, Makati, Metro Manila, willfully,
Jesus, 229 Phil. 518 [1986]).
unlawfully and feloniously violate their solemn oath as officers to
defend the Constitution, the law and the duly-constituted authorities
 Mafinco Trading Corp. v. Ople, No. L-37790, March 25, 1976, 70
[26]
and abuse their constitutional duty to protect the people and the State
by, among others, attempting to oust the incumbent duly-elected and
legitimate president by force and violence, seriously disturbing the
peace and tranquility of the people and the nation they are sworn to
protect, thereby causing dishonor and disrespect to the military
profession, conduct unbecoming an officer and a gentleman, in
violation of AW 96 of the Articles of War.
CONTRARY TO LAW.
Article 96 of the Articles of War defines the punitive act of conduct
unbecoming an officer and a gentleman as follows:
Art. 96. Conduct Unbecoming an Officer and Gentleman. – Any
officer, cadet, flying cadet, or probationary second lieutenant, who is
convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service.
Case law has it that common crimes committed in furtherance of a
political crime, such as rebellion, are therein absorbed. A political
crime is one directly aimed against the political order as well as such
common crimes as may be committed to achieve a political purpose.
The decisive factor is the intent or motive. Coup d'etat is a political
crime because the purpose of the plotters is to seize or diminish State
power. If a crime usually regarded as common, like murder, is
perpetrated to achieve a political purpose, then said common crime is
stripped of its common complexion, inasmuch as, being part and
parcel of the crime of rebellion, the former acquires the political
character of the latter.[1] Such common offenses assume the political
complexion of the main crime of which they are mere ingredients,
and, consequently, cannot be punished separately from the principal
offense, or complexed with the same to justify the imposition of the
graver penalty.[2]
In Ponce Enrile v. Amin,[3] the court ruled that the principle of
absorption of common crimes by the political crime applies to crimes
defined and penalized by special laws, such as Presidential Decree
No. 1829, otherwise known as Obstruction of Justice. However,
in Baylosis v. Chavez, Jr.,[4] the Court ruled that the rulings of this
Court in People v. Hernandez,[5]Ponce Enrile v. Amin[6] and Enrile v.
Salazar,[7] do not apply to crimes which, by statutory fiat, are sui
generis.
Indeed, the service-connected punitive acts defined and penalized
under the Articles of War are sui generis offenses not absorbed by
rebellion perpetrated, inter alia, by the officers and enlisted
personnel of the Armed Forces of the Philippines (AFP) or coup
d'etat. This is so because such acts or omissions are merely
violations of military discipline, designed to secure a higher
efficiency in the military service; in other words, they are purely
disciplinary in their nature, and have exclusive regard to the special
character and relation of the AFP officers and enlisted personnel.
Laws providing for the discipline as well as the organization of the
AFP are essential to the efficiency for the military service in case
their services should ever be required. "Deprive the executive branch
of the government of the power to enforce proper military
regulations by fine and imprisonment, and that, too, by its own
courts-martial, which from time immemorial have exercised this
right, and we at once paralyze all efforts to secure proper discipline
in the military service, and have little left but a voluntary
organization, without cohesive force."[8]
It bears stressing that for determining how best the AFP shall attend
to the business of fighting or preparing to fight rests with Congress
and with the President. Both Congress and this Court have found that
the special character of the military requires civilian authorities to
accord military commanders some flexibility in dealing with matters
that affect internal discipline and morale. In construing a statute that
touches on such matters, therefore, courts must be careful not to
circumscribe the authority of military commanders to an extent never
intended by Congress. Under these and many similar cases reviewing
legislative and executive control of the military, the sentencing
scheme at issue in this case, and the manner in which it was created,
are constitutionally unassailable.[9]
Officers and enlisted personnel committing punitive acts under the
Articles of War may be prosecuted and convicted if found guilty of
such acts independently of, and separately from, any charges filed in
the civilian courts for the same or similar acts which are penalized
under the Revised Penal Code, under special penal laws or
ordinances; and prescinding from the outcome thereof.
At this point, it is well to have a basic understanding of the Articles
of War under Commonwealth Act No. 408, which was essentially
copied from that of the United States, which, in turn, had been
superseded by the Uniform Code of Military Justice. Our Articles of
War has since been amended by Republic Act Nos. 242 and 516.
The Articles of War is the organic law of the AFP and, in keeping
with the history of military law, its primary function is to enforce
"the highest form of discipline in order to ensure the highest degree
of military efficiency." The following commentary is enlightening:
History points out the fact that nations have always engaged in wars.
For that purpose, bodies of men have been organized into armed
forces under a commander-in-chief who, through his subordinate
commanders, enforces the highest form of discipline in order to
ensure the highest degree of military efficiency.
Victory in battle is the ultimate aim of every military commander,
and he knows that victory cannot be attained, no matter how superior
his forces may be, in men and materials, if discipline among the
rank-and-file is found wanting. For, "if an Army is to be anything but
an uncontrolled mob, discipline is required and must be enforced."
For this reason, in order to set an effective means of enforcing
discipline, all organized armies of the world have promulgated sets
of rules and regulations and later, laws as embodied in the articles of
war, which define the duties of military personnel and distinguish
infractions of military law and impose appropriate punishment for
violation thereof.[10]
Every officer, before he enters in the duties of his office, subscribes
to these articles and places himself within the powers of courts-
martial to pass on any offense which he may have committed in
contravention thereof.[11]
It is said that conduct unbecoming an officer and a gentleman is a
uniquely military offense.[12] In order to constitute the said offense,
the misconduct must offend so seriously against the law, justice,
morality or decorum as to expose to disgrace, socially or as a man,
the offender, and at the same time must be of such a nature or
committed under such circumstances as to bring dishonor or
disrepute upon the military profession which he represents. [13] The
article proscribing conduct unbecoming an officer and a gentleman
has been held to be wholly independent of other definitions of
offenses, and the same course of conduct may constitute an offense
elsewhere provided for and may also warrant a conviction under this
provision; it is not subject to preemption by other punitive articles. [14]
The administration of military justice under the Articles of War has
been exclusively vested in courts-martial whether as General Courts-
Martial, Special Courts-Martial or Summary Courts-Martial.
[15]
 Courts-martial pertain to the executive department and are, in
fact, simply instrumentalities of the executive power, provided by
Congress for the President as Commander-in-Chief to aid him in
properly commanding the army and navy, and enforcing discipline
therein.[16]
As enunciated by the United States Supreme Court, "the military is,
by necessity, a specialized society separate from civilian society. It
has, again by necessity, developed laws and traditions of its own
during its long history. The differences between the military and
civilian communities result from the fact that it is the primary
business of armies and navies to fight or ready to fight wars should
the occasion arise."[17] Further, the US Supreme Court quite
succinctly stated that "the military constitutes a specialized
community governed by a separate discipline from that of the
civilian."[18]
I wish to emphasize, however, a caveat: not all service-connected
punitive acts under the Articles of War may be prosecuted before the
courts-martial independently of a crime defined and penalized under
the Revised Penal Code against the same accused based on the same
set of delictual acts. Congress may criminalize a service-connected
punitive offense under the Articles of War.
A review of the deliberations in the Senate or the Report of the
Conference Committee of Senate Bill 1500 will readily show
that coup d'etat was incorporated in the Revised Penal Code in
Article 134-A precisely to criminalize "mutiny" under Article 67 of
the Articles of War and to penalize the punitive act of mutiny, under
the Articles of War as coup d'etat. Article 67 of the Articles of War
reads:
Art. 67. Mutiny or Sedition. – Any person subject to military law
who attempts to create or who begins, excites, causes, or joins in any
mutiny or sedition in any company, party, post, camp, detachment,
guard, or other command shall suffer death or such other punishment
as a court-martial may direct.
Without Article 134-A in the Revised Penal Code, the mutineers
would be charged for mutiny under Article 67 of the Articles of War:
Senator Lina. Yes, Mr. President.
Senator Enrile. Then we added Article 134-A which deals with the
new crime of coup d'etat.
Senator Enrile. – and we defined how this newly characterized and
defined crime would be committed in Article 134-A?
Senator Lina. Yes, Mr. President.
Senator Enrile. And, in fact, we made a distinction between the
penalty of the crimes defined under Article 134 of the Revised Penal
Code and the crime defined under Article 134-A, is this correct, Mr.
President?
Senator Lina. Yes, Mr. President.
Senator Enrile. In fact, we distinguished between the conspiracy and
proposal to commit the crime of rebellion from the conspiracy and
proposal to commit coup d'etat?
Senator Lina. Yes, Mr. President.
Senator Enrile. So that, for all intents and purposes, therefore, we are
defining a new crime under this proposed measure—
Senator Lina. Yes, Mr. President.
Senator Enrile.—which is coup d'etat. We are, in effect, bringing
into the Revised Penal Code, a crime that was penalized under the
Articles of War as far as military participants are concerned and call
it with its name  "coup d'etat"? 
Senator Lina. Yes, Mr. President. That is the . . .
Senator Enrile. Because without this criminalization of coup
d'etat under the Revised Penal Code, people in the active service
would be charged with mutiny?
Senator Lina. Yes, Mr. President. Especially when they are inside the
camp, when the rank-and-file go up to arms or insubordination or
against the orders of their superiors, they would be charged under the
Articles of War.
Senator Enrile. In fact, one of the distinguishing features of a coup
d'etat as defined here is, apart from the overt acts of taking a swift
attack with violence, intimidation, threat, strategy, or stealth against
the duly-constituted authorities or an installation, et cetera, the
primary ingredient of this would be the seizure or diminution of state
power.
Senator Lina. Yes, that is the objective, Mr. President.
  G.R. No. 92163, June 5, 1990, 186 SCRA 217.
[7]

Senator Enrile. On the other hand, in the case of rebellion as defined

under Article 134, it does not necessarily mean a seizure of State  Michigan v. Wagner, 77 N.W. 422.
[8]

power or diminution of State power, but all that is needed would be

to deprive the Chief Executive or the legislature of any of its powers.  Loving v. U.S., 517 U.S. 748, 778, 116 S.Ct. 1737 (1966).
[9]

Senator Lina. That is correct, Mr. President. [10]

 Gloria, Philippine Military Law Annotated, p. 3.

Senator Enrile. So that, there is a basis to consider a clear and [11]

 Carter v. Roberto, 177 U.S. 497 (1900).
definable distinction between the crime of coup d'etat and the crime
of rebellion as defined under Article 135? [12]
 U.S. v. Weldon, 7 M.J. 938 (1979).

Senator Lina. Yes, Mr. President. [13]

 Parker v. Levy, 417 U.S. 733 (1974).

Senator Enrile. I just want to put that into the Record. [14]

 U.S. v. Taylor, 23 M.J. 341 (1987).
Thus, officers and enlisted personnel of the AFP charged of coup
d'etat can no longer be charged with mutiny under Article 67 of the
[15]
 Article 3, Articles of War.
Articles of War before courts-martial for the same delictual or
punitive act.  Supra note 14, p.17, citing Winthrop, Military Law and
[16]

Precedents (2nd ed.), 49.

I vote to DISMISS the petition. [17]
 U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
[18]
 Orloff v. Willoughby, 345 U.S. 83 (1953)
 People v. Hernandez, 99 Phil. 515, 536 (1956).
[1]

 Id. at 541.
[2]

 G.R. No. 93335, September 13, 1990, 189 SCRA 573, 580-581.
[3] SEPARATE OPINION
(Concurring and Dissenting)
 G.R. No. 95136, October 3, 1991, 202 SCRA 405, 416.
[4]

TINGA, J.:
 Supra note 1.
[5]

My concurrence to the dismissal of the petition is limited to a much

 Supra note 3.
[6] narrower ground than that offered by the majority opinion, which,
with due respect, I am unable to fully join and thus impelled to
mostly dissent from. The broad propositions adopted by the majority
render inutile Republic Act No. 7055, (RA 7055) that generally
restored civil jurisdiction over offenses involving members of the
Armed Forces of the Philippines (AFP). This law stands as a key
implement in the restoration of civilian supremacy over the military,
a precept that was reinvigorated with the restoration of civil
democracy in 1986. The rationale that sustains the majority position
stands athwart to that important constitutional principle as
effectuated through RA 7055.
Instead, my position hinges on the peculiar nature of Article 96 of
the Articles of War, the violation of which petitioners stand accused
of before the court-martial. Not only does Article 96 embody a rule
uniquely military in nature, it also prescribes a penalty wholly
administrative in character which the civilian courts are
incapable of rendering. For that reason alone, I agree that
petitioners may stand civilian trial for coup d'etat and court-martial
for violation of Article 96.
Still, I acknowledge that I would have voted to grant the petition had
petitioners faced other charges, instead of the sole Article 96 charge,
before the court-martial in connection with the Oakwood mutiny. I
submit that RA 7055 precisely authorizes the civil court to
independently determine whether the offense subject of the
information before it is actually service-connected. If the trial court
does determine, before arraignment, that the offense is service-
connected, it follows that, as a rule, the military court will not have
jurisdiction over the acts constituting the offense.
Restatement of Relevant Facts
The following facts I consider relevant.
On 5 August 2003, just a little over a week after the so-called
Oakwood mutiny, the Department of Justice filed an Information
with the Regional Trial Court (RTC) of Makati against 321 military
personnel, including petitioners, for violation of Article 134-A of the
Revised Penal Code which is the crime of coup d'etat. After the case
was docketed as Criminal Case No. 03-2784, the RTC directed the
DOJ to conduct a reinvestigation of the said case. On the same day
that the order for re-investigation was issued, the AFP Chief of Staff
created a Pre-Trial Investigation Panel against the same persons to
determine the propriety of filing charges with a military tribunal
against petitioners, along with 300 or so other soldiers, for violation
of the Articles of War, again in connection with the Oakwood
mutiny. Thus, 243 of the accused before the RTC, including
petitioners, filed a motion with the trial court praying that the court
assume jurisdiction over all the charges filed with the military
tribunal, following RA 7055.[1]
After re-investigation, the DOJ found probable cause for the crime
of coup d'etat against only 31 of the original 321 accused. The DOJ
then filed a motion for dismissal of the charge of coup d'etat against
the 290 others, which motion was granted by the RTC in an Order
dated 14 November 2003. Petitioners were among the 31 who still
faced the charge of coup d'etat before the RTC.
Notwithstanding the dismissal of the charge of coup d'etat against
the 290 soldiers, they were still charged before the General Court
Martial for violation of Articles 63, 64, 67, 96 and 97 of the Articles
of War.[2] Among the charges faced by these soldiers was for
"mutiny," punishable under Article 63. Only those soldiers the
charge of coup d'etat against whom was dismissed were
subjected to the charge of Articles of War violations before the
court-martial. Some of these 290 soldiers challenged the
jurisdiction of the court-martial in a petition for prohibition before
this Court, which was denied in Navales v. Abaya[3] in 2004.
On the other hand, on 9 December 2003, the Pre-Trial Investigation
Panel recommended that the 31 officers facing the charge of coup
d'etat before the trial court be excluded from the court-martial
proceedings. The rationale that the Panel offered was the assumption
of civilian jurisdiction by the RTC based on RA 7055 and its belief
that the charges against the 31 it was investigating were absorbed by
the crime of coup d'etat, which was already within the jurisdiction of
the RTC to try and decide.
It was on 11 February 2004 that the RTC issued an Order (RTC
Order) stating that "all charges before the court-martial against the
accused.. are hereby declared not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup
d'etat." Note that as of then, only 31 officers remained within the
jurisdiction of the RTC. If there are any relevant subjects of the RTC
Order, it is these 31, including petitioners, and not the 290 others the
case for coup d'etat against whom had already been dismissed.
Thus, as things stood as of 11 February 2004, only 31 officers,
including petitioners, were still within the jurisdiction of the RTC, as
they remained charged with coup d'etat. None of the 31 were facing
any charge before the court-martial, the investigation against them
by the AFP Pre-Trial Investigation Panel had already been concluded
by then. On the other hand, the 290 other soldiers, including the
Navales petitioners, were no longer facing any criminal cases before
the RTC, but were instead facing court-martial charges. This
symmetry is deliberate, cognizant as the DOJ and the AFP were of
the general principle, embodied in RA 7055, that jurisdiction over
acts by soldiers which constitute both a crime under the penal laws
and a triable offense under the Articles of War is exercised
exclusively by either the civilian court or the court-martial,
depending on the circumstances as dictated under Section 1 of RA
7055.
It was in June of 2004 that this symmetry was shattered. It appears
that at that point, the AFP reconsidered its earlier decision not to try
the 31 officers before the court-martial. There appears per record, a
letter dated 17 June 2004, captioned "Disposition Form," signed by a
certain De Los Reyes, and recommending that the 31 be charged as
well before the court-martial for violation of Article 96 of the
Articles of War and that pre-trial investigation be reconducted for
that purpose.[4] This recommendation was approved by then AFP
Chief of Staff Narciso Abaya. It was this decision to reinitiate court-
martial proceedings against the 31 that impelled the present petition
for prohibition.
As stated earlier, I believe that ultimately, petitioners may still be
charged with violation of Article 96 of the Articles of War,
notwithstanding the pending case for coup d'etat before the RTC
against them. My reason for such view lies in the wholly
administrative nature of Article 96 and the sole penalty prescribed
therein, dismissal from service, which is beyond the jurisdiction of
civilian courts to impose. Yet I arrive at such view without any
denigration of the RTC Order, which proceeds from fundamentally
correct premises and which, to my mind, bears the effect of
precluding any further charges before the court-martial against
petitioners in relation to the Oakwood mutiny. Unfortunately, the
majority gives undue short shrift to the RTC Order and the
predicament confronting the present petitioners, who are now facing
not only trial before the civilian court for the crime of coup d'etat,
but also court-martial proceedings for acts which if not identical to
those charged in the criminal case are at least integrally related. I
respectfully submit that RA 7055 was precisely designed to generally
prevent such anomaly, but that the majority fails to give fruition to
such legislative intent.
Instead, the majority has laid down a general rule that if
members of the military are charged before military tribunals
with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97,
then the court-martial proceedings would progress
unhampered even if the acts which constitute the violation of the
Articles of War also constitute offenses under the Revised Penal
Code. The court-martial proceedings would also ensue even if the
said personnel are also charged for the same acts with a criminal
case before the civilian court, and even if the civilian court
determines that the acts are not service-connected. Most critically,
this view would allow the defendant to be tried and convicted by
both the military and civilian courts for the same acts, despite
the consistent jurisprudential rule that double jeopardy applies
even as between court-martial and criminal trials. I cannot agree
to these general propositions, excepting when the defendants
happen to be charged before the court-martial for violation of
Article 96 of the Articles of War.
There are three fundamental questions that are consequently
raised. First, can Congress by law limit the jurisdiction of
military tribunals and court-martials? Second, does RA 7055
effectively deprive military courts jurisdiction over violations of
Articles of War 54 to 70, 72 to 92, and 95 to 97 if the civilian
court determines that the offenses charged do not constitute
service-connected offenses? And third, does it constitute double
jeopardy if the same military actor is tried and convicted before
both civilian and military courts for the same acts? I respectfully
submit that all these questions should generally be answered in
the affirmative.
Jurisdictions of Courts-Martial In
the Philippines Fundamentally Statutory
I begin with the constitutional and statutory parameters of courts-
martial in the Philippines.
It is settled, in cases such as Ruffy v. Chief of Staff,[5] that court-
martial proceedings are executive in character, deriving as they do
from the authority of the President as the Commander-in-Chief of the
armed forces.[6] Indeed, the authority of the President to discipline
members of the armed forces stands as one of the hallmarks of the
commander-in-chief powers. Obedience to the President and the
chain-of-command are integral to a professional and effective
military, and the proper juridical philosophy is to accede as much
deference as possible to this prerogative of the President.
However, in Marcos v. Chief of Staff,[7] decided five (5) years after
Ruffy, the Court ruled that the word "court" as used in the
Constitution included the General Court-Martial, citing Winthrop's
Military Law and Precedents, which noted that "courts-martial are
[in] the strictest sense courts of justice". [8] Indeed, it would be
foolhardy to ignore, with semantics as expedient, the adjudicative
characteristics of courts-martial and their ability to inflict
punishment constituting deprivation of liberty, or even life. A court-
martial is still a court of law and justice, [9] although it is not a part of
the judicial system and judicial processes, but remains to be a
specialized part of the over-all mechanism by which military
discipline is preserved.[10]
Regardless of the accurate legal character of courts-martial, it should
go without saying that the authority of the President to discipline
military personnel through that process is still subject to a level of
circumscription. Without such concession, the President could very
well impose such draconian measures of military punishment, such
as death by firing squad for overweight soldiers. The Court has
indeed, on occasion, recognized limitations and regulations over
courts-martial. In Olaguer v. Military Commission,[11] the Court
reasserted that military tribunals cannot try and exercise jurisdiction
over civilians for as long as the civil courts are open and functioning.
[12]
 The authority of the Supreme Court to review decisions of the
court-martial was affirmed in Ognir v. Director of Prisons,[13] and
should be recognized in light of the judicial power of the Supreme
Court under the 1987 Constitution, which extends to determining
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. And
finally, there are the series of rulings on the subject of double
jeopardy, which I shall soon discuss further.
Most strikingly, the "Articles of War" presently in use emanates not
from executive fiat, but from a law passed by the National Assembly
known as Commonwealth Act No. 408. As such, the determination
of what acts or offenses are punishable by court-martial was in
actuality made not by the President, but by the legislature. As such,
the Articles of War are utterly susceptible to legislative amendment,
augmentation, or even revocation.
I do not doubt that without an enabling law, the President would
have the power to impose court-martial proceedings under the aegis
of the Commander-in-Chief clause. Yet if there is an enabling law
passed, such as Commonwealth Act No. 408, then the President is
bound to exercise the power to prescribe court-martial proceedings
only within the limits imposed by the law. These precepts should not
preclude the President from mandating other forms of military
discipline, but if the choice is to subject the soldier concerned to
court-martial, then such proceedings should ensue within the
boundaries determined by the legislature under Commonwealth Act
No. 408.
American jurisprudence is actually quite emphatic that the
jurisdiction of a court-martial is established by statute, and a court-
martial has no jurisdiction beyond what is given by statute. "[A]
court-martial [is] a special statutory tribunal, with limited
powers."[14] To quote from Corpus Juris Secundum:
The jurisdiction of a court-martial is premised on an authorized
convening authority, court membership in accordance with the
law, and power derived from congressional act to try the person
and the offense charged. [15] Thus, in order for a court-martial to
have jurisdiction, it must be convened and constituted in
accordance with law[16]; and a court-martial has no jurisdiction
beyond what is given it by statute.[17] General court-martial
jurisdiction is not restricted territorially to the limits of a particular
state or district.
The long continued practice of military authorities in exercising
court-martial jurisdiction may aid in the interpretation of statutes
conferring such jurisdiction; but the authority of a Secretary of an
armed forces department to issue regulations does not permit
extension of the jurisdictions of courts-martial of the armed
force controlled by that department beyond the limits fixed by
Congress[18], and regulations issued or approved by the President
even though not objected to by Congress may not extend the
jurisdiction of courts-martial beyond that conferred by statute.
[19]
The language of statutes granting jurisdiction to courts-martial to try
persons for offenses must be construed to conform as near as may be
to the constitutional guarantees that protect the rights of citizens in
general, it being assumed that Congress intended to guard jealously
against dilution of the liberties of citizens by the enlargement of
jurisdiction of military tribunals at the expense of the jurisdiction of
the civil courts.[20]
Clearly then, while court-martial under military law may be sui
generis, it is not supra legem. The power to try by court-martial is
established, defined and limited by statute, even if it arises as a
consequence of the power of the President as Commander-in-Chief.
What are the implications of these doctrines to the case at bar? To
my mind, they sufficiently establish that Congress does have the
power to exclude certain acts from the jurisdiction of the General
Court-Martial. The same legislature that enacted Commonwealth Act
No. 408 is very well empowered to amend that law, as it has done on
occasion.[21] And I submit that Congress has done so with the
enactment of RA 7055.
Republic Act No. 7055
The title of RA 7055 reads "An Act Strengthening Civilian
Supremacy Over the Military By Returning to the Civil Courts
the Jurisdiction Over Certain Offenses Involving Members of
the Armed Forces of the Philippines, Other Persons Subject to
Military Law, and the Members of the Philippine National Police,
Repealing for the Purpose Certain Presidential Decrees." [22] In the
Philippines, the conferment of civil jurisdiction over members of the
military charged with non-service connected offenses is predicated
on the constitutional principle of civilian supremacy over the
military.[23] As Senator Wigberto Tañada remarked in his sponsorship
remarks over Senate Bill No. 1468, eventually enacted as RA 7055,
"[A]s long as the civil courts in the land remain open and are
regularly functioning, military tribunals cannot try and exercise
jurisdiction over military men for criminal offenses committed by
them and which are properly cognizable by the civil courts. To have
it otherwise would be a violation of the aforementioned
constitutional provisions on the supremacy of civilian authority over
the military and the integrity and independence of the judiciary, as
well as the due process and equal-protection clauses of the
Constitution."[24]
The title of the law alone is already indicative of the law's
general intent to exclude from the jurisdiction of the General
Court-martial "certain offenses" which would now be tried by
the civil courts. Section 1 operationalizes such intent, asserting as a
general rule that members of the AFP "who commits crimes
penalized under the Revised Penal Code, other special penal laws, or
local government ordinances xxx shall be tried by the proper civil
court xxx." Notably, the majority does concede the general rule.
The exception of course, are offenses which are service-connected.
They are excluded from the jurisdiction of the civilian courts. It is
worth mentioning at this juncture that the concept of "service-
connected" offenses as a determinant of court-martial jurisdiction
arose from American jurisprudence. In O'Callahan v. Parker,
[25]
 decided in 1969, the U.S. Supreme Court reversed previous
doctrines and announced a new constitutional principle ── that a
military tribunal ordinarily may not try a serviceman charged with a
crime that has no service connection.[26]
RA 7055 Reposes on the Trial Court
The Specific Role of Determining Whether
The Offense is Service-Connected
Obviously, the ascertainment of whether or not a crime is service-
connected is of controversial character, necessitating the exercise of
judgment. Appropriately, that function is assigned by Section 1
not to the courts-martial, but to the civil courts. Indeed, Section 1
requires that before the offense shall be tried by court-martial, there
must be first a determination before arraignment by the civil court
that the offense is indeed service-connected. Section 1 states:
Members of the Armed Forces of the Philippines and other persons
subject to military law xxx who commit crimes or offenses penalized
under the Revised Penal Code, other special penal laws, or local
government ordinances, regardless of whether or not civilians are co-
accused, victims or offended parties which may be natural or
juridical persons, shall be tried by the proper civil court, except
when the offense, as determined before arraignment by the civil
court, is service-connected, in which case the offense shall be
tried by court-martial xxx
As used in this Section, service-connected crimes or offenses shall
be limited to those defined in Articles 54 to 70, Articles 72 to 92,
and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.[27] (Emphasis supplied.)
There are two possible scenarios that may arise after a soldier
commits a crime which is punishable under both the Revised Penal
Code and under Commonwealth Act No. 408.
In one, the soldier is charged only with violation of the Articles of
War and tried by the court-martial. In this situation wherein no
criminal case is filed against the soldier, the court-martial continues
unimpeded.
In the other, the soldier is charged with both violation of the Articles
of War (triable by court-martial) and a criminal offense involving the
same act (triable by the civilian court). Here, a different set of rules
operates. RA 7055 comes into application in such a case. Section 1
of RA 7055 clearly reposes on the trial court, and not the court-
martial, the duty to determine whether the charges in the information
are service-connected. If the civilian court makes a determination
that the acts involved are not service-connected, then the court-
martial will generally have no jurisdiction.
In this particular role, the trial court is merely guided in its
determination by Articles of War 54 to 70, 72 to 92, and 95 to 97,
the specific articles to which the determination of service-
connected offenses according to RA 7055 is limited. The
importance of the trial court's function of determination cannot be
dismissed lightly. Since the law mandates that the trial court make
such a determination, it necessarily follows that the court has to
ascertain on its own whether the offenses charged do fall within the
Articles of War. It would not bind the civilian court that the
defendants are charged with the same acts before the court-
martial under Articles of War 54 to 70, 72 to 92, and 95 to 97.
The civilian court is required to still make a determination,
independent of that of the court-martial, that the acts charged
constitute a service-connected offense.
However, the majority is satisfied that since petitioners are charged
before the military tribunal with violation of one of the Articles of
War so mentioned in Section 1 of RA 7055, this offense is within the
jurisdiction of the court-martial. The majority is thus of the position
that regardless of whatever transpires in the civilian court trial, court-
martial proceedings may ensue unimpeded so long as the defendants
therein are charged with Articles of War 54 to 70, 72 to 92, and 95 to
97. Such jurisdiction of the court-martial subsists even if the civilian
courts had determined that the acts which constitute the offense
triable under court-martial are not service-connected. This position
renders utterly worthless the function of the civilian courts to
determine whether the offense is indeed service-connected, as
such determination would no longer have any bearing on the
jurisdiction of the courts-martial to try the same acts.
Justice Carpio, in particular, asserts in his Concurring Opinion that
the civilian court is limited to "only a facial examination of the
charge sheet in determining whether the offense charged is service
connected."[28] This proposition negates the entire purpose of RA
7055, as it would ultimately render the military as the sole judge
whether a civilian court can acquire jurisdiction over criminal acts by
military personnel, even if such soldier has committed a crime under
the Revised Penal Code. Under this position, all the military has to
do is to charge the actor with violation of Articles of War 54 to 70,
72 to 92, and 95 to 97, and the civilian court would be effectively
deprived of jurisdiction to try the offense, even if the act is clearly
punishable under civil penal laws. With all due respect, such "facial
examination", which would be undertaken by a learned judge of a
civilian court, can be accomplished with ease by a non-lawyer, by a
fifteen-year old, or anybody with rudimentary skills in the English
language. After all, the only necessary act for such purpose would be
to look at the charge sheet and the Articles of War. As long as the
civilian court sees that charge sheet states that the defendants have
been charged with any of the aforementioned Articles of War, the
determinative function would already be accomplished.
Under the standard of "facial examination," the trial court can very
well make its determination even without the benefit of charge sheet
if there is no such charge sheet yet. In reality though, the trial courts
primary source of information and basis for determination is the
information in the criminal case before it, as well as the affidavits
and documents which the prosecution may make available to it.
Assuming that there is a court-martial charge sheet, the same on its
face may be incapable of capturing the particulars of the criminal
acts committed, as there is no prescribed demand for such
particularity. As such, a "facial examination" could not suffice in
affording the civilian court any significant appreciation of the
relevant factors in determining whether the offense was indeed
service-connected.
Worse, by advocating "facial examination" as a limit, this view
would actually allow malfeasors in the military to evade justice, if
they are fortunate enough to have sympathizers within the military
brass willing to charge them with a violation of the aforementioned
articles of war in order that they escape the possibly harsher scrutiny
of the civilian courts. For example, Article 69 of the Articles of War
punishes persons subject to military law who commit frauds against
the government, which include, among others, stealing, embezzling,
knowingly and willfully misappropriating, applying to his own use
or benefit or wrongfully or knowingly selling or disposing of "any
ordinance, arms, equipment, ammunition, clothing, subsistence
stores, money or other property of the Government furnished or
intended for the military service."[29] The offense, which according to
the majority is strictly a service-connected offense, is punishable by
"fine or imprisonment, or by such other punishment as a court-
martial may adjudge, or by any or all of said penalties." [30] A military
comptroller who embezzles the pension funds of soldiers could be
made liable under Article 95, and thus could be appropriately
charged before the court-martial. Also pursuant to Article 95, the
court-martial has the discretion to impose as final punishment a fine
of P1,000.00, even if the comptroller embezzled millions of pesos. If
the said comptroller has friends within the military top brass, the
prospect of such a disproportionate penalty is actually feasible.
Now, if Justice Carpio's position were to be pursued, no civilian
court, whether the RTC or the Sandiganbayan, could acquire
jurisdiction over the comptroller for the offense of embezzlement,
which is punishable under the Revised Penal Code and the Anti-
Graft and Corrupt Practices Act, the moment the comptroller faces
the charge of violating Article 95 before the court-martial. Why?
Because these civilian courts would be limited to "only a facial
examination of the charge sheet in determining whether the offense
is service-connected." Justice Carpio adds, "[i]f the offense, as
alleged in the charge sheet, falls under the enumeration of service-
connected offenses in Section 1 of RA No. 7055, then the military
court has jurisdiction over the offense."
Applying Justice Carpio's analysis to this theoretical example, the
offense is "as alleged in the charge sheet" is a violation of Article 95
of the Articles of War. Article 95 "falls under the enumeration of
service-connected offenses in Section 1 of R.A. No. 7055." Then,
according to Justice Carpio, "the military court has jurisdiction over
the offense." Yet Section 1 also states that as a general rule that it is
the civilian courts which have jurisdiction to try the
offense, "except when the offense, as determined before
arraignment by the civil court, is service-connected, in which
case the offense shall be tried by court-martial." The ineluctable
conclusion, applying Justice Carpio's view to our theoretical
example, is that the civilian court does not have jurisdiction to
try the offense constituting embezzlement since it was forced to
determine, following the limited facial examination of the charge
sheet, that the act of embezzlement punishable under Article 95
of the Articles of War is a service-connected offense.
If "facial examination" ill-suffices as the appropriate standard of
determination, what then should be the proper level of
determination?
Full significance should be accorded the legislative tasking of the
civil court, not the military court, to determine whether the offense
before it is service-connected or not. Indeed, determination clearly
implies a function of adjudication on the part of the trial court, and
not a mechanical application of a standard pre-determined by some
other body. The word "determination" implies deliberation[31] and is,
in normal legal contemplation, equivalent to "the decision of a court
of justice."[32] The Court in EPZA v. Dulay[33] declared as
unconstitutional a presidential decree that deprived the courts the
function of determining the value of just compensation in eminent
domain cases. In doing so, the Court declared, "the determination of
"just compensation" in eminent domain cases is a judicial
function."[34]
The majority shows little respect for the plain language of the law.
As earlier noted, they believe that the determination reposed in the
civilian court is limited to a facial examination of the military charge
sheet to ascertain whether the defendants have been charged before
the court-martial with the violation of Articles of War 54 to 70, 72 to
92, and 95 to 97. Their position could have been sustained had
Section 1 read, "As used in this Section, service-connected crimes or
offenses are those defined in Articles 54 to 70, Articles 72 to 92, and
Articles 95 to 97 of Commonwealth Act No. 408, as amended,"
discarding the phrase "shall be limited to" immediately preceding
the words "those defined." Such phraseology makes it clear that
"service-connected crimes or offenses" are equivalent to "Articles 54
to 70, Articles 72 to 92, and Articles 95 to 97." Yet Section 1 is
hardly styled in that fashion. Instead, it precisely reads, "xxx service-
connected crimes or offenses shall be limited to those defined in
Articles 54 to 70 xxx."  The function devolved by the law on the trial court involves the
What is the implication of the phrase "shall be limited to"? This has
to be tied to the role of determination ascribed to the civilian court in
the previous paragraph under Section 1. Note again, "determination"
signifies that the civilian court has to undertake an inquiry whether
or not the acts are service connected. As stated earlier, the Articles of
War specified in Section 1 serve as guides for such determination.
"shall be limited to" assures that the civilian court cannot rely on a
ground not rooted on those aforementioned articles in ruling that an
offense is service-connected. For example, the civilian court cannot
declare that an offense is service-connected because the offender is a
three-star general. Being a three-star general is in no way connected
to Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97.
At the same time, Section 1 concedes that if the act or offense for
which the defendant is prosecuted before the civilian court also falls
within those specified Articles of War, then the civilian court has to
further determine whether the offense is service-connected. For
example, a soldier who knowingly harbors or protects an enemy of
the state may be liable under Article 82 of the Articles of War, which
generally punishes military persons who aid the enemy, or under
Article 114 of the Revised Penal Code, which classifies giving aid or
comfort to the enemy as an act of treason. If the soldier is charged
with treason, the civilian court may be called upon to determine
whether the acts of assistance are service-connected, and it should be
able to take into account the particular circumstances surrounding
such acts. If the trial court determines that the offense is indeed
service-connected, finding for example that the defendant had used
his/her rank to assist the enemy, then it may rely on Article 82 in its
conclusion that the act is service-connected. If however, the actor's
being also a soldier proved merely incidental and inconsequential to
the assistance rendered to the enemy, the civilian court could very
well declare that the offense is not service-connected and thus
subject to trial for treason before it.
determination of which offenses are service-connected and which
offenses are not. The power of determination, however, is
circumscribed by the law itself. By employing the phrase "shall be
limited to" and tying it with specifically enumerated Articles, the law
precludes the trial court from characterizing acts which fall under the
Articles not so enumerated as service-connected. Since Article 93
defining rape and Article 94 defining "various crimes" are not
included in the enumeration in RA 7055 it follows that the trial court
is devoid of authority to declare rape and "various crimes" as
service-connected.
Again, the general purpose of RA 7055 is to deprive the court-
martial of jurisdiction to try cases which are properly cognizable
before the civilian courts. Hence, if a soldier is charged with
violation of any of the articles other than those referred to in Section
1, the court-martial is deprived of jurisdiction under RA 7055 if such
violation also constitutes a crime or offense under our penal laws.
Section 1, by citing those aforementioned articles, carves an
exception to the general rule, yet at the same time, qualifies this
exception as subject to the determination of the trial court. Hence, if
the trial court so determines that the "service-connected" exception
does not apply, the general rule depriving the court-martial
jurisdiction over the offense should continue to operate.
It is worth mentioning that prior to RA 7055, Commonwealth Act
No. 408 recognized an exception to the rule that military persons are
always subjected to court-martial in lieu of civil trial. Article 94
stipulated that a person subject to military law who committed a
felony, crime, breach of law or violation of municipal ordinance
recognized as an offense of a penal nature was punishable by court-
martial, provided that such act was committed "inside a reservation
of the [AFP]," or outside such reservation when the offended party is
a person subject to military law.[35] The implication, therefore, was
that if such act described were committed outside a military
reservation, the civilian courts would have jurisdiction to try such
offense. As the official Manual for Courts-Martial of the AFP states,
"[w]henever persons subject to military law commit any of the
offenses above stated outside Philippine Army reservations, they fall
under the exclusive jurisdiction of civil courts." [36]
RA 7055 clearly expands this exception, by now mandating that even
crimes committed within military reservations fall within the
jurisdiction of civil courts, the only exception remaining is if it is
determined by the civilian court that the offense is actually service-
connected. Significantly, Section 1 of RA 7055 did not include
Article 94 as among the Articles of War which define service-
connected offenses.[37] Evidently the situs of the offense is not
material as to whether the acts committed are service-connected
offenses.
Admittedly, RA 7055 effectively curtails the ability of the military
leadership to discipline the soldiers under their command through the
court-martial process. This is accomplished though not by shielding
errant soldiers from the criminal processes, but instead through the
opposite route, by entrusting to the civilian courts the authority and
sufficient discretion to impose substantive justice on such soldiers,
conformably with the constitutional principle of civilian supremacy
over the military. It must be noted that the acquisition of exclusive
jurisdiction by the court-martial to try soldiers for acts punishable
under penal laws is a double-edged sword of mischief. It can be
utilized by a military leadership with an unquenchable thirst to
punish its soldiers, a procedure which is facilitated due to the
relatively lighter evidentiary requirements under military justice. It
can also be utilized by a military leadership greatly sympathetic to
one of their "mistahs" under fire, since the ability to inflict the
lightest and most disproportionate of punishments falls within the
wide range of discretion in the punishment accorded by law to
courts-martial. Either premise is undesirable, and precisely RA 7055
was enacted to ensure that the civilian courts have all the opportunity
to acquire jurisdiction over military persons who commit crimes, and
to assure the trial courts all the discretion necessary to determine
whether it should assume jurisdiction if the exception provided under
Section 1 of the law is invoked.
RA 7055 Generally Prevents Military Personnel
From Facing Simultaneous Criminal Trials and Courts-Martial
Over the Same Acts or Offenses
It is thus not enough that petitioners have been charged with
violating an Article of War referred to in Section 1 to authorize their
court-martial to proceed, since the same act that constitutes the
violation of an Article of War is also alleged in the complaint
for coup d'etat now pending in the civilian courts. In order that the
court-martial proceedings against petitioners could ensue, it is
indisputably necessary that the RTC Order determining that the
charges before the court-martial are not service-connected is directly
nullified or reconsidered with the needed effect of terminating the
criminal case for coup d'etat against them. If the act constituting the
offense triable before the civilian courts and the court-martial are the
same, then the defendants may be tried only either before the civilian
courts or the court-martial, and not in both tribunals.
This is precisely why the exceptions under Section 1 of RA 7055
were provided for – to prevent the anomaly of the defendants
being subjected to two different trials of equally punitive value ordinance, which is recognized as an offense of a penal nature, and is
for the same act. It is well worth noting that the Senate deliberations punishable under the penal laws of the Philippines or under
on RA 7055 indicate a strong concern on the part of the legislators municipal ordinances. 
over the situation wherein violations of the Articles of War also
stand as violations of the Revised Penal Code. The following Senator Gonzales. We have the assurance of the distinguished
exchange between the late Senate President Neptali Gonzales and Gentleman, and we rely on that assurance. xxx[38]
Senator Wigberto Tañada is worth noting: The passage deserves to be cited as it affirms the deliberate intent,
Senator Gonzales. Again, in line 16, it says: The offenses defined in already evident in the text of the law itself, to avoid the scenario of
Articles 54 to 93 and 95 to 97 of the Articles of War, established by the civilian courts and the courts-martial exercising concurrent
Commonwealth Act Numbered Four Hundred Eight, as amended, the jurisdiction over the same acts. Hence, for as long as the act
same shall be triable by court-martial.  committed by the soldier does not fall within those Articles of War
referred to in Section 1, the civilian courts alone exercises
But there are many offenses which are also violations of the jurisdiction over the trial of the acts. If it is asserted by the courts-
Articles of War. For example, murder. It may not necessarily be martial, or otherwise argued, that the act complained of falls within
a murder of a fellow member of the Armed Forces. That is also a those Articles of War referred to in Section 1, then the civilian court
violation of the Articles of War; but, at the same time, it is also a must make a determination that the acts committed are "service-
crime punishable under the Penal Code. What do we do in such a connected," with the cited Articles as reference, before it can
situation?  exercise its jurisdiction to the exclusion of the courts-martial. If the
trial court declares that the acts are service-connected, it then is
Senator Tañada. In such an example, that would be tried by the obliged to decline jurisdiction in favor of the courts-martial.
civil courts. We had accepted the amendment proposed by Senator
Ziga to exclude Article 93 under the Articles of War which would The cited passage does express the opinion of Senator Tañada that
refer to murder or rape committed in times of war. Now, we have there is absolutely no situation wherein the same act constitutes a
excluded that, because we believe that the murder or rape, whether violation of the Revised Penal Code and at the same time a violation
committed in times of war, should not be tried by the civil courts.  of the Articles of War. Such opinion might be cited to refute the
declaration in the RTC Order that the acts charged before the court-
Senator Gonzales. Do we have the distinguished Gentleman's martial were absorbed in the crime of coup d'etat. Yet caution should
assurance that after deleting Article 93, also with respect to Articles be had before this opinion of Senator Tañada is cited for that
54 to 92, 95 to 97, there is absolutely no situation wherein the same purpose. The quoted remarks were made on 21 May 1990, or five (5)
act constitutes a violation of the Revised Penal Code and at the same months before the crime of coup d'etat was incorporated into the
time a violation of the Articles of War?  Revised Penal Code with the enactment of Republic Act No. 6968 on
24 October 1990. Certainly, when Senator Tañada made such
Senator Tañada. Yes, Mr. President. We excluded also Article 94 of opinion, he had no reason to believe that the cited Articles of War
the Articles of War, because this refers to various crimes that may be did not constitute any violation of the Revised Penal Code,
committed by persons subject to military law, which crimes can be particularly the crime of coup d'etat, since no such crime existed
considered as felonies, breach of law, or violation of municipal then.
 Double Jeopardy
There is another vital reason RA 7055 cannot be interpreted in such a
way as to permit both civilian and military trials of military
personnel over the same act. Double jeopardy would arise as a
consequence if such an interpretation were foisted.
It is very well settled that double jeopardy attaches if one is tried by
both a military court and a civilian court over the same act,
notwithstanding the differing natures of both tribunals. The rule was
pronounced by the Philippine Supreme Court as far back as 1903,
in U.S. v. Colley.[39] Therein, the defendant was sentenced to death by
a court-martial after murdering a fellow soldier, but the sentence
could not be carried out after the reviewing authority of the Army
concluded that the military authorities were without power to carry
into execution the sentence. He then was charged with the same
offense before a civilian court. In ruling that the criminal case should
be dismissed, the Court ruled that the criminal trial was barred by
double jeopardy. The Court pronounced: "So here there is but one
offense, that against the United States, and when the Government
chooses the tribunal in which to try an offender, when the trial takes
place in that tribunal, and when the accused is convicted and
sentenced, he can not again be put in jeopardy in another court of the
same sovereignty. xxx It follows that the defendant having been once
in jeopardy can not be tried again for the offense of which he was
formerly convicted."[40] A similar situation obtained in U.S. v. Tubig,
[41]
 decided some months later, and a similar judgment of acquittal
was mandated by the Court on the ground of double jeopardy.
The doctrine has survived past the American occupation. In 1954,
the Court was again confronted with the issue whether a sentence
passed by a military court barred further prosecution of the same
offense in a civilian court. The Court, in Crisologo v. People,
[42]
 squarely ruled that double jeopardy indeed barred such
prosecution:
As we see it, the case hinges on whether the decision of the military
court constitutes a bar to further prosecution for the same offense in
the civil courts.
The question is not of first impression in this jurisdiction. In the case
of U. S. vs. Tubig, 3 Phil., 244, a soldier of the United States Army
in the Philippines was charged in the Court of First Instance of
Pampanga with having assassinated one Antonio Alivia. Upon
arraignment, he pleaded double jeopardy in that he had already been
previously convicted and sentenced by a court-martial for the same
offense and had already served his sentence. The trial court overruled
the plea on the grounds that as the province where the offense was
committed was under civil jurisdiction, the military court had no
jurisdiction to try the offense. But on appeal, this court held that "one
who has been tried and convicted by a court-martial under
circumstances giving that tribunal jurisdiction of the defendant and
of the offense, has been once in jeopardy and cannot for the same
offense be again prosecuted in another court of the same
sovereignty." In a later case, Grafton vs. U. S. 11 Phil., 776, a private
in the United States Army in the Philippines was tried by a general
court-martial for homicide under the Articles of War. Having been
acquitted in that court, he was prosecuted in the Court of First
Instance of Iloilo for murder under the general laws of the
Philippines. Invoking his previous acquittal in the military court, he
pleaded it in bar of proceedings against him in the civil court, but the
latter court overruled the plea and after trial found him guilty of
homicide and sentenced him to prison. The sentence was affirmed by
this Supreme Court, but on appeal to the Supreme Court of the
United States, the sentence was reversed and defendant acquitted,
that court holding that "defendant, having been acquitted of the
crime of homicide alleged to have been committed by him by a
court-martial of competent jurisdiction proceeding under the
authority of the United States, cannot be subsequently tried for the
same offense in a civil court exercising authority in the Philippines."
There is, for sure, a rule that where an act transgresses both civil and
military law and subjects the offender to punishment by both civil
and military authority, a conviction or an acquittal in a civil court
cannot be pleaded as a bar to a prosecution in the military court, and
vice versa. But the rule "is strictly limited to the case of a single act
which infringes both the civil and the military law in such a manner
as to constitute two distinct offenses, one of which is within the
cognizance of the military courts and the other a subject of civil
jurisdiction" (15 Am. Jur., 72), and it does not apply where both
courts derive their powers from the same sovereignty. (22 C. J. S.,
449.) It therefore, has no application to the present case where the
military court that convicted the petitioner and the civil court which
proposes to try him again derive their powers from one sovereignty
and it is not disputed that the charges of treason tried in the court-
martial were punishable under the Articles of War, it being as a
matter of fact impliedly admitted by the Solicitor General that the
two courts have concurrent jurisdiction over the offense charged. [43]
As noted earlier, Marcos, relying on Winthrop's Military Law,
pronounced that courts-martial are still courts in constitutional
contemplation.[44] At the same time, the Court in Marcos pursued the
logic of this thinking insofar as double jeopardy was concerned:
Besides, that a court-martial is a court, and the prosecution of an
accused before it is a criminal and not an administrative case, and
therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter
would place the accused in double jeopardy, is shown by the
decision of the Supreme Court of the United States in the case of
Grafton vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092,
in which the following was held:
"If a court-martial has jurisdiction to try an officer or soldier for a
crime, its judgment will be accorded the finality and conclusiveness
as to the issues involved which attend the judgments of a civil court
in a case of which it may legally take cognizance; . . . and restricting
our decision to the above question of double jeopardy, we adjudge
that, consistently with the above act of 1902, and for the reasons
stated, the plaintiff in error, a soldier in the Army, having been
acquitted of the crime of homicide, alleged to have been committed
by him in the Philippines, by a military court of competent
jurisdiction, proceeding under the authority of the United States,
could not be subsequently tried for the same offense in a civil court
exercising authority in that territory."
I am aware that following the Court's 1993 ruling in People v.
Pineda,[45] double jeopardy will not attach unless either the RTC or
the court-martial passes sentence on the petitioners. Yet even
applying the Pineda doctrine, it is inevitable that, once either
tribunal renders judgment on the merits, double jeopardy would bar
the further prosecution by the court which was last in time to
pronounce sentence, regardless whether petitioners were convicted
or acquitted. If both the RTC trial for coup d'etat and the court-
martial of the petitioners are allowed to proceed unhampered, the
strong likelihood arises that either one will be eventually mooted, no
matter the stage, should the other pronounce sentence.
I submit that RA 7055 precisely sought to avoid such a scenario by
prescribing, as a general rule, an exclusively civilian trial for military
personnel charged with offenses punishable under our penal laws,
even if they are also punishable under the Articles of War. The only
general exception lies if the civilian court determines that the acts
constituting the court-martial offenses are service-connected, as
defined under those Articles of War referred to in Section 1, in which
case jurisdiction falls exclusively with the court-martial. If the
civilian court arrives at a contrary determination, the civilian court
retains jurisdiction to the exclusion of the court-martial unless and
until such determination is reconsidered or set aside, or unless the
criminal case is dismissed or dropped for reasons other than acquittal
on the merits. The only exception I am willing to concede is if the
charge before the court-martial falls under Article 96, which I will
discuss further.
Notion of Absorption of Crimes
Irrelevant to Determination under RA 7055
I would like to dwell briefly on the suggestion that the RTC erred in
pronouncing that the acts for which petitioners were charged before
the court-martial were "absorbed" in the crime of coup d'etat. Justice
Callejo, Sr., in his Concurring Opinion, cites Baylosis v. Chavez,
[46]
 and the rule that the doctrines laid down on the absorption of
common crimes by political crimes do not apply to crimes which
are sui generis offenses.
This aspect is no longer material to my own disposition of the
petition, yet I think it is misplaced to apply the doctrine of absorption
of crimes to the determination of service-connected offenses made
by the civilian court pursuant to Section 1 of RA 7055. The function
of such determination by the trial court under RA 7055 is wholly
different from that utilized by the trial court in ascertaining whether
crime A is absorbed by crime B in the classic criminal law context.
The latter is material to the trial court in reaching conclusions as to
which crimes may be considered against the accused and which
penalties may apply as to them. However, the purpose of the
determination under RA 7055 is merely for establishing whether the
acts for which the accused stand charged before the courts-martial
are indeed service-connected offenses cognizable exclusively before
the military courts, or non-service connected offenses cognizable
exclusively before the civilian courts. The determining factor is
whether the act is "service-connected," not whether one act is
absorbed into the other.
The RTC may have been too loose in language when it utilized the
word "absorbed," yet the word should not be appreciated in the
context of absorption of crimes, as such consideration is wholly
irrelevant for purposes of Section 1. Instead, I think that the pertinent
conclusion of the RTC in its Order was that the acts charged before
the court-martial were not service-connected, as they were
committed in furtherance of the crime of coup d'etat. This, and not
the notion of absorption of crimes, should be the foundational basis
for any attack of the RTC Order.
The Special Circumstance Surrounding Article of War 96
It is my general conclusion that if the civilian court makes a
determination that the acts for which the accused stands charged of,
for violating those Articles of War referred to in Section 1 of RA
7055, are not service-connected, then such determination, once final,
deprives the court-martial jurisdiction to try the offense. However, I
submit that Article of War 96 warrants special consideration, as it
differs in character from the other Articles of War referred to in
Section 1 of RA 7055.
Article 96 of Commonwealth Act No. 408, as amended, reads:
Art. 96. Conduct Unbecoming an Officer and a Gentleman. – Any
officer, cadet, flying cadet, or probationary second lieutenant, who is
convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service.
Justice Callejo, Sr. points out in his Concurring Opinion that
"conduct unbecoming an officer and a gentleman is a uniquely
military offense,"[47] and that "[t]he article proscribing conduct
unbecoming an officer and a gentleman has been held to be wholly
independent of other definitions of offenses xxx [and] is not subject
to preemption by other punitive articles."[48] It is difficult to dispute
these conclusions, which derive from American military case law.
After all, "conduct unbecoming" pertains to the unique exigencies of
military life and discipline, whereby an officer is expected to
conform to an idiosyncratic etiquette not required of civilians.
Yet more pertinent to my position is the penalty prescribed by
Article 96 for "conduct unbecoming." The penalty is dismissal from
service, a penalty which is administrative in character, and beyond
the jurisdiction of the civilian court to impose. Notably, of all the
Articles of War referred to in Section 1 of RA 7055, it is only Article
96 that provides for dismissal from service as the exclusive penalty.
All the other articles so mentioned allow for the penalty of death,
imprisonment, or a punishment "as a court-martial may so direct"
which could very well constitute any deprivation of life or liberty.
While these other articles prescribes a penalty which is penal in
nature, it is only Article 96 which provides for a penalty which is
administrative in character.
As a result, I am prepared to conclude that courts-martial retain the
jurisdiction to try violations of Article 96 of Commonwealth Act No.
408, or conduct unbecoming of an officer, even if the RTC
determines that the acts constituting such violation are service-
connected. The intent of RA 7055 is to restore to civilian courts
jurisdiction over offenses which are properly cognizable by them to
the exclusion of courts-martial. Such intent could obviously not
extend to those offenses which the civilian courts do not have
jurisdiction to try and punish. Civilian courts are utterly incapable of
penalizing military officers with the penalty of discharge from the
service, since the penalty is administrative in character [49] and
imposable only by the military chain of command.
Petition Should Have Been Granted If Petitioners
Were Charged Under A Different Article of War
Still, if petitioners were facing the charge of mutiny under Article 63
of the Articles of War, or any other Article of War for that matter, in
connection with the Oakwood incident, the petition would have been
fully meritorious. The RTC has made a determination that all acts
related to the Oakwood incident are not service-connected offenses. I
am not fully prepared to subscribe to the position that the acts
relating to Oakwood were "absorbed" in the offense of coup
d'etat. However, I do concede two important points. First, the RTC
did determine that the acts relating to Oakwood were not service-
connected. Second, the determination of the RTC, as embodied in the
11 February 2004 Order, remains binding as the said Order has not
been appealed. It has not been modified or set aside, even by the
present decision or by the ruling in Navales.
The majority is clearly in a quandary, all too willing to pronounce
that the Order is wrong, or even a nullity, yet unable to directly
nullify the same. Respondents argue that the Order is already final
and beyond challenge, and that contention should not be dismissed
offhand. The suggestion has been raised that the principle of res
judicata should not be made to apply in this case, since the AFP was
not a party to the criminal case. This claim is off-tangent, assuming
as it does that the AFP somehow has a distinct and segregate legal
personality from the government of the Philippines. The AFP is part
of the government. It is indeed headed by the same person who heads
the executive branch of government. The AFP likewise answers to
officers of the executive branch, such as the Secretary of Defense.
Certainly, the rendition of the Order would have presumably caused
the same level and degree of grief on the AFP as it would have on
the Department of Justice.
But was the government truly offended by the RTC Order? If it were,
it should have timely elevated the same for appellate review. The
fact that it did not gives further indication that the government
recognized that Order as fundamentally correct, especially
considering that it contains the very same conclusions reached by the
Pre-Trial Investigating Panel constituted by the AFP.
I think in the end, respondents fully understood and applied the
correct implications of RA 7055 as it pertained to petitioners. Had
respondents been aligned in thinking with the majority, they would
have been emboldened to charge petitioners with violations of other
Articles of War despite the RTC Order and the pendency of the coup
d'etat case. Petitioners could have very well been charged before the
court-martial with violation of Article 63, for mutiny, just as the 290
other participants in the "Oakwood mutiny." Respondents however
did not do so, respecting in fact the assumption of jurisdiction by the
civilian court over the crime of coup d'etat. Instead, respondents
limited the court-martial charge against petitioners for violation of
Article 96, a punitive article which is nonetheless wholly
administrative in character and in penalty. 
The majority unfortunately shows no similar prudence. Instead, it has
opted to take the path that leads to most resistance. With the decision
today, there now stands a very real danger tomorrow that persons
standing criminal trial before the civil courts, including the
Sandiganbayan, who also happen to be facing charges before the
court-martial for violation of Articles 54 to 70, 72 to 92, 95 or 97,
will move for the dismissal of all their cases before the civilian
courts. Assuming that there is integral relation between the acts now
cognizable under court-martial and the acts for which those
defendants face criminal trial, the trial courts will feel but little
choice to dismiss those charge, in light of the present majority ruling.
Military justice was once supreme over civilian justice. We should
not go down that way again. Too many ghosts haunt that road.
I vote to dismiss the petition, for the reason discussed above. Insofar
as the majority ruling deviates from the views I stated herein, I
respectfully dissent.
 Rollo, pp. 107-115.
[1]
 See id. at 186-206.
[2]
 G.R. No. 162318 & 162341, 25 October 2004, 441 SCRA 393.
[3]
The author of this opinion was a member of the Court that
unanimously decided Navales, which used a similar rationale in
dismissing the petitions therein to that now employed by the
majority. Even at present, the author submits that Navales was
correctly decided, considering the following declaration made by the
Court therein: " There was no factual and legal basis for the RTC
(Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97
of the Articles of War were committed in furtherance of coup d'etat
and, as such, absorbed by the latter crime. It bears stressing that,
after a reinvestigation, the Panel of Prosecutors found no
probable cause for coup d'etat against the petitioners and
recommended the dismissal of the case against them. The trial
court approved the recommendation and dismissed the case as
against the petitioners. There is, as yet, no evidence on record that
the petitioners committed the violations of Articles 63, 64, 96, and
97 of the Articles of War in furtherance of coup d'etat" Navales v.
Abaya, id., at 417. Nonetheless, the author acknowledges that several
passages in Navales are not consistent with the views expressed in
this Opinion which now embodies the author's present thinking,
arrived at after considerable reevaluation of the legal issues involved.
[4]
 Rollo, pp. 266-267.
[5] 
75 Phil. 875 (1946). 
 See also e.g., S/Sgt. Santiago v. Lt. Col. Alikpala, et al., 134 Phil.
[6]
309, 318 (1968).
[7]
 89 Phil. 246 (1951). 
[8]
 Id. at 248-249. 
Claro C. Gloria, Philippine Military Law, p. 18 (1956), citing
[9] 
Winthrop, Military Law and Precedents , 2nd Ed., p. 54.
"As a court of law, it is bound, like any court, by the fundamental
principles of law, and in the absence of a special provision on the
subject in the military code, it observes in general the rules of
evidence as adopted in the civil courts. As a court of justice, it is
required, by the terms of its statutory oath, to adjudicate between the
Philippines and the accused "without partiality, favor, or affection,"
and according, not only to the laws and customs of the service, but to
its "conscience, i.e., its sense of substantial right and justice
unaffected by technicalities. In the strictest sense courts-martial are
courts of justice.
Magno v. de Villa, G.R. No. 92606, 26 July 1991, 199 SCRA 663,
[10] 
673, citing Chief Justice Teehankee in Vargas v. RADM Kilcline, et
al.
[11]
 GR. Nos. L-54558 & L-69882, 22 May 1987, 150 SCRA 144. 
 jurisdiction over an offense hinged on one factor: the military status
[12]
 Id. at 165.  of the accused. Solorio v. U.S., id. at 450-451. Still, it would be
foolhardy to apply any persuasive value to the Solorio ruling to the
[13] 
80 Phil. 401 (1948).  present petition. The Court in Solorio whole-heartedly embraced the
principle that it was the U.S. Congress that possessed "the authority
[14]
 Collins v. McDonald, 258 US 416, 417. to regulate the conduct of persons who are actually members of the
armed services", id., at 441. The U.S. Supreme Court also
[15]
 NCMR - U.S. v. Moody, 10 M.J. 845. acknowledged that "Congress has primary responsibility for the
delicate task of balancing the rights of servicemen against the needs
[16]
 ACMR – U.S. v. Wilson, 27 M.J. 555. of the military. As [the U.S. Supreme Court] recently reiterated,
"judicial deference" is at its apogee when legislative action under the
[17]
 In re Wilson, D.C.Va., 33 F.2d 214. congressional authority to raise and support armies and make rules
and regulations for their governance is challenged.'" Id., at 447,
 U.S. ex rel. Hirshberg v. Cooke, N.Y., 69 S.Ct. 530, 336 U.S. 210,
[18]
citing Goldman v. Weinberger, 475 U.S. 503, 508 (1986). There was
93 L.Ed. 621. no American statute that prescribed the "service-connected"
standard, even at the time O'Callahan was decided, the latter
 U.S. ex rel. Flannery v. Commanding General, Second Service
[19]
decision predicated instead on the Fifth and Six Amendments in the
Command, D.C.N.Y., 69 F.Supp. 661.  Bill of Rights. In the Philippine setting, "service-connected" is a
standard duly legislated and enacted by Congress under Rep. Act No.
[20]
 57 C.J.S. Military Justice § 156. Emphasis supplied. 7055. My views in this Opinion are thus conformable even to
the Solorio decision.
 Com. Act No. 408 has been amended by Rep. Act No. 242 (1948)
[21]

and Rep. Act No. 516 (1950).   Section 1, Rep. Act No. 7055. Emphasis supplied. 
[27]

[22]
 Emphasis supplied.   Concurring Opinion, J. Carpio, infra. 
[28]

[23]
 See Constitution, Art. II, Section 3.   See Article 95, Com. Act No. 408, as amended. 
[29]

[24]
 Record of the Senate, 9 May 1990, p. 671.   Id. 
[30]

[25]
 395 U.S. 298 (1969).   "The words "a design, a determination, to kill, distinctly formed
[31]

in the mind" in an instruction, imply deliberation. "xxx The word

 See also Gosa v. Mayden, 413 U.S. 665, 672
[26]
(1973). O'Callahan in turn was reversed by the U.S. Supreme Court
in its 1987 ruling in Solorio v. U.S., 483 U.S. 435, which reiterated
the previous doctrine that the proper exercise of court-martial
"determination in this instruction is not used in any technical sense;
in fact, it has no technical sense in which it means less than it does in
popular signification. Webster defines it to be a "decision of a
question in the mind; firm resolution; settled purpose." Can it be said
that a question can be decided, a wavering resolution made firm, or a [39]
 3 Phil. 58 (1903).
hesitating purpose settled without deliberation?" 12 Words and
Phrases (1954 ed.), p. 478-479; citing State v. Ah Mook, 12 Nev. 369, [40]
 Id. at 66. 
390.
[41]
 3 Phil.244 (1904).
[32]
 1 Bouvier's Law Dictionary (8th ed., 1914), p. 858. 
[42]
 94 Phil. 477 (1954).
[33]
 G.R. No. L-59603, 29 April 1987, 149 SCRA 305.
[43]
 Id. at 479-480.
 Id. at 316. Justice Vicente Mendoza's declaration in Iglesia Ni
[34]

Cristo v. Court of Appeals, 328 Phil. 893 (1996), is worth [44] 

Supra note 9.
mentioning. "Indeed, I cannot understand why, after ruling that the
valuation of property in eminent domain is essentially a judicial [45]
 G.R. No. 44205, 16 February 1993, 219 SCRA 1. 
function which cannot be vested in administrative agencies, this
Court should be willing to leave the valuation of that priceless [46]
 G.R. 95136, 3 October 1991, 202 SCRA 405. 
commodity " expression, whether by means of motion picture or
television " to administrative agencies with only occasional review  Concurring Opinion of Justice Callejo, Sr., infra; citing U.S. v.
[47]

by the courts. The trend may be toward greater delegation of judicial Weldon, 7 M.J. 938 (1979). 
authority to administrative agencies in matters requiring technical
knowledge and as a means of relieving courts of cases which such [48]
 Id. citing U.S. v. Taylor, 23 M.J. 341 (1987). 
agencies can very well attend to. There is no justification, however,
for such delegation in the area of our essential freedoms, particularly  "The provisions of both the Civil Code and the Rules of Court
[49]

freedom of expression, where "only a judicial determination in an regarding the relationship between the criminal and civil liabilities of
adversary proceeding [can] ensure the necessary sensitivity to an accused do not contemplate administrative actions against
freedom of expression." Id. at 962, J. Mendoza, Separate Opinion. government officers and employees. While there may be specific
statutes making criminal guilt indispensable to the dismissal or any
This proviso was enacted as an amendment to Com. Act No. 408
[35] 
other form of administrative punishment for certain public
by Rep. Act No. 242 in 1948.  employees, and there have been instances when the court itself did
order reinstatement as a consequence of absolute acquittal, as a rule
 A Manual for Courts-Martial: Armed Forces of the Philippines, p.
[36]
xxx the administrative determination as to an employee's dismissal
181.  or punishment in any other way is not predicated in any respect on
the result of corresponding criminal proceedings." Rice and Corn
[37]
 See note 27.  Administration v. Silao, G.R. No. L-25294, 21 August 1980, 99
SCRA 200, 207-208. "[T]he criminal action is separate and distinct
[38]
 Record of the Senate, 21 May 1990, p. 840.  from the administrative case. And, if only for that reason, so is
administrative liability separate and distinct from penal liability.
Hence, probation only affects the criminal aspect of the case, not its
administrative dimension." Samalio v. Court of Appeals, G.R. No.
140079, 31 March 2005, 454 SCRA 462, 475. 

Batas.org 
 Supreme Court of the Philippines
416 Phil. 365  the crew and took complete control of the vessel. Thereafter,
THIRD DIVISION
G.R. No. 111709, August 30, 2001
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O.
CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG,
AND JOHN DOES, ACCUSED-APPELLANTS.  Navy. However, search and rescue operations yielded negative
DECISION
MELO, J.:
This is one of the older cases which unfortunately has remained in
docket of the Court for sometime.  It was reassigned, together with
other similar cases, to undersigned ponente in pursuance of A.M.
No. 00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel
owned by the PNOC Shipping and Transport Corporation, loaded
with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and
40,000 barrels of diesel oil, with a total value of P40,426,793,87. was
sailing off the coast of Mindoro near Silonay Island.
The vessel, manned by 21 crew members, including Captain
Edilberto Libo-on, Second Mate Christian Torralba, and Operator
Isaias Ervas, was suddenly boarded, with the use of an aluminum
ladder, by seven fully armed pirates led by Emilio Changco, older
brother of accused-appellant Cecilio Changco. The pirates, including
accused-appellants Tulin, Loyola, and Infante, Jr. were armed with
M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained
accused-appellant Loyola ordered three crew members to paint over,
using black paint, the name "M/T Tabangao" on the front and rear
portions of the vessel, as well as the PNOC logo on the chimney of
the vessel. The vessel was then painted with the name "Galilee," with
registry at San Lorenzo, Honduras. The crew was forced to sail to
Singapore, all the while sending misleading radio messages to PNOC
that the ship was undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the
disappearance of the vessel to the Philippine Coast Guard and
secured the assistance of the Philippine Air Force and the Philippine
results. On March 9, 1991, the ship arrived in the vicinity of
Singapore and cruised around the area presumably to await another
vessel which, however, failed to arrive. The pirates were thus forced
to return to the Philippines on March 14, 1991, arriving at Calatagan,
Batangas on March 20, 1991 where it remained at sea.
On March 28, 1991, the "M/T Tabangao" again sailed to and
anchored about 10 to 18 nautical miles from Singapore's shoreline
where another vessel called "Navi Pride" anchored beside it. Emilio
Changco ordered the crew of "M/T Tabangao" to transfer the vessel's
cargo to the hold of "Navi Pride". Accused-appellant Cheong San
Hiong supervised the crew of "Navi Pride" in receiving the cargo.
The transfer, after an interruption, with both vessels leaving the area,
was completed on March 30,1991.
On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas,
but the vessel remained at sea. On April 10, 1991, the members of
the crew were released in three batches with the stern warning not to
report the incident to government authorities for a period of two days
or until April 12, 1991, otherwise they would be killed.  The first
batch was fetched from the shoreline by a newly painted passenger
jeep driven by accused-appellant Cecilio Changco, brother of Emilio
Changco, who brought them to Imus, Cavite and gave P20,000.00 to
Captain Libo-on for fare of the crew in proceeding to their respective
homes. The second batch was fetched by accused-appellant Changco
at midnight of April 10, 1991 and were brought to different places in
Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members
of the crew, called the PNOC Shipping and Transport Corporation
office to report the incident. The crew members were brought to the
Coast Guard Office for investigation. The incident was also reported
to the National Bureau of Investigation where the officers and
members of the crew executed sworn statements regarding the
incident.
A series of arrests was thereafter effected as follows:
a. On May 19, 1991, the NBI received verified information that the
pirates were present at U.K. Beach, Balibago, Calatagan, Batangas.
After three days of surveillance, accused-appellant Tulin was
arrested and brought to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola were arrested by
chance at Aguinaldo Hi-way by NBI agents as the latter were
pursuing the mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants Hiong and Changco were
arrested at the lobby of Alpha Hotel in Batangas City.
On October 24 1991, an Information charging qualified piracy or
violation of Presidential Decree No. 532 (piracy in Philippine
Waters) was filed against accused-appellants, as follows:
The undersigned State Prosecutor accuses ROGER P. TULIN,
VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C.
INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN
DOES of qualified piracy (Violation of P.D. No. 532), committed as
follows:
That on or about and during the period from March 2 to April 10,
1991, both dates inclusive, and for sometime prior and subsequent
thereto, and within the jurisdiction of this Honorable Court, the said
accused, then manning a motor launch and armed with high powered
guns, conspiring and confederating together and mutually helping
one another, did then and there, wilfully, unlawfully and feloniously
fire upon, board and seize while in the Philippine waters M/T PNOC
TABANGCO loaded with petroleum products, together with the
complement and crew members, employing violence against or
intimidation of persons or force upon things, then direct the vessel to
proceed to Singapore where the cargoes were unloaded and
thereafter returned to the Philippines on April 10, 1991, in violation
of the aforesaid law.
CONTRARY TO LAW.
(pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49
of the Regional Trial Court of the National Capital Judicial Region
stationed in Manila. Upon arraignment, accused-appellants pleaded
not guilty to the charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding
some inconsistencies in their testimony as to where they were on
March 1, 1991, maintained the defense of denial, and disputed the
charge, as well as the transfer of any cargo from "M/T Tabangao" to
the "Navi Pride." All of them claimed having their own respective
sources of livelihood. Their story is to the effect that on March 2,
1991, while they were conversing by the beach, a red speedboat with
Captain Edilberto Liboon and Second Mate Christian Torralba on
board, approached the seashore. Captain Liboon inquired from the
three if they wanted to work in a vessel. They were told that the work
was light and that each worker was to be paid P3,000.00 a month
with additional compensation if they worked beyond that period.
They agreed even though they had no sea-going experience. On
board, they cooked, cleaned the vessel, prepared coffee, and ran
errands for the officers. They denied having gone to Singapore,
claiming that the vessel only went to Batangas. Upon arrival thereat
in the morning of March 21, 1991, they were paid P1,000.00 each as
salary for nineteen days of work, and were told that the balance
would be remitted to their addresses. There was neither receipt nor
contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring
that he was at home sleeping on April 10, 1991. He testified that he
is the younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali,
adduced evidence that he studied in Sydney, Australia, obtaining the
"Certificate" as Chief Officer, and later completed the course as a
"Master" of a vessel, working as such for two years on board a
vessel.  He was employed at Navi Marine Services, Pte., Ltd. as Port
Captain. The company was engaged in the business of trading
petroleum, including shipoil, bunker lube oil, and petroleum to
domestic and international markets.  It owned four vessels, one of
which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by
Emilio Changco and his cohorts, Hiong's name was listed in the
company's letter to the Mercantile Section of the Maritime
Department of the Singapore government as the radio telephone
operator on board the vessel "Ching Ma."
The company was then dealing for the first time with Paul Gan, a
Singaporean broker, who offered to sell to the former bunker oil for
the amount of 300,000.00 Singapore dollars. After the company paid
over one-half of the aforesaid amount to Paul Gan, the latter,
together with Joseph Ng, Operations Superintendent of the firm,
proceeded to the high seas on board "Navi Pride" but failed to locate
the contact vessel.
The transaction with Paul Gan finally pushed through on March 27,
1991. Hiong, upon his return on board the vessel "Ching Ma," was
assigned to supervise a ship-to-ship transfer of diesel oil off the port
of Singapore, the contact vessel to be designated by Paul Gan. Hiong
was ordered to ascertain the quantity and quality of the oil and was
given the amount of 300,000.00 Singapore Dollars for the purchase.
Hiong, together with Paul Gan, and the surveyor William Yao, on
board "Navi Pride" sailed toward a vessel called "M/T Galilee".
Hiong was told that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was made by the port
authorities before departure, Navi Marine Services, Pte., Ltd. was
able to procure a port clearance upon submission of General
Declaration and crew list. Hiong, Paul Gan, and the brokers were not
in the crew list submitted and did not pass through the immigration.
The General Declaration falsely reflected that the vessel carried
11,900 tons.
On March 28, 1991, "Navi Pride" reached the location of "M/T
Galilee". The brokers then told the Captain of the vessel to ship-side
with "M/T Galilee" and then transfer of the oil transpired. Hiong and
the surveyor William Yao met the Captain of "M/T Galilee," called
"Captain Bobby" (who later turned out to be Emilio Changco).
Hiong claimed that he did not ask for the full name of Changco nor
did he ask for the latter's personal card.
Upon completion of the transfer, Hiong took the soundings of the
tanks in the "Navi Pride" and took samples of the cargo. The
surveyor prepared the survey report which "Captain Bobby" signed
under the name "Roberto Castillo." Hiong then handed the payment
to Paul Gan and William Yao. Upon arrival at Singapore in the
morning of March 29, 1991, Hiong reported the quantity and quality
of the cargo to the company.
Thereafter, Hiong was again asked to supervise another transfer of
oil purchased by the firm " from "M/T Galilee" to "Navi Pride." The
same procedure as in the first transfer was observed. This time,
Hiong was told that that there were food and drinks, including beer,
purchased by the company for the crew of "M/T Galilee. The transfer
took ten hours and was completed on March 30, 1991. Paul Gan was
paid in full for the transfer.
On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he
had four vessels and wanted to offer its cargo to cargo operators.
Hiong was asked to act as a broker or ship agent for the sale of the
cargo in Singapore. Hiong went to the Philippines to discuss the
matter with Emilio Changco, who laid out the details of the new
transfer, this time with "M/T Polaris" as contact vessel. Hiong was
told that the vessel was scheduled to arrive at the port of Batangas
that weekend. After being billeted at Alpha Hotel in Batangas City,
where Hiong checked in under the name "SONNY CSH." A person
by the name of "KEVIN OCAMPO," who later turned out to be
Emilio Changco himself, also checked in at Alpha Hotel. From
accused-appellant Cecilio Changco, Hiong found out that the vessel
was not arriving. Hiong was thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accused-
appellants of the crime charged. The dispositive portion of said
decision reads:
WHEREFORE, in the light of the foregoing considerations,
judgment is hereby rendered by this Court finding the accused Roger
Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco
guilty beyond reasonable doubt, as principals, of the crime of piracy
in Philippine Waters defined in Section 2(d) of Presidential Decree
No. 532 and the accused Cheong San Hiong, as accomplice, to said
crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering
that, under the 1987 Constitution, the Court cannot impose the death
penalty, the accused Roger Tulin, Virgilio Loyola, Andres
Infante, ]r., and Cecilio Changco are hereby each meted the penalty
of RECLUSION PERPETUA, with all the accessory penalties of the
law. The accused Cheong San Hiong is hereby meted the penalty of
RECLUSION PERPETUA, pursuant to Article 52 of the Revised
Penal Code in relation to Section 5 of PD 532. The accused Roger
Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are
hereby ordered to return to the PNOC Shipping and Transport
Corporation the "M/T Tabangao" or if the accused can no longer
return the same, the said accused are hereby ordered to remit, jointly
and severally, to said corporation the value thereof in the amount of
P11,240,000.00 Philippine Currency, with interests thereon, at the
rate of 6% per annum from March 2, 1991 until the said amount is
paid in full. All the accused including Cheong San Hiong are hereby
ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T
Tabangao", or if the accused can no longer return the said cargo to
said corporation, all the accused are hereby condemned to pay,
jointly and severally, to the Caltex Refinery, Inc., the value of said
cargo in the amount of P40,426,793.87, Philippine Currency plus
interests until said amount is paid in full. After the accused Cheong
San Hiong has served his sentence, he shall be deported to
Singapore.
All the accused shall be credited for the full period of their detention
at the National Bureau of Investigation and the City Jail of Manila
during the pendency of this case provided that they agreed in writing
to abide by and comply strictly with the rules and regulations of the
City Jail of Manila and the National Bureau of Investigation. With
costs against all the accused.

SO ORDERED.
(pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of
accused-appellants may be summarized as follows:
Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O.
Changco
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco
assert that the trial court erred in allowing them to adopt the
proceedings taken during the time they were being represented by
Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their
constitutional right to procedural due process.
In this regard, said accused-appellants narrate that Mr. Posadas
entered his appearance as counsel for all of them. However, in the
course of the proceedings, or on February 11, 1992, the trial court
discovered that Mr. Posadas was not a member of the Philippine Bar.
This was after Mr. Posadas had presented and examined seven
witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco
uniformly contend that during the custodial investigation, they were
subjected to physical violence; were forced to sign statements
without being given the opportunity to read the contents of the same;
were denied assistance of counsel, and were not informed of their
rights, in violation of their constitutional rights,
Said accused-appellants also argue that the trial court erred in finding
that the prosecution proved beyond reasonable doubt that they
committed the crime of qualified piracy. They allege that the pirates
were outnumbered by the crew who totaled 22 and who were not
guarded at all times. The crew, so these accused-appellants conclude,
could have overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
obliterated the crime committed by him; (2) the trial court erred in
declaring that the burden is lodged on him to prove by clear and
convincing evidence that he had no knowledge that Emilio Changco
and his cohorts attacked and seized the "M/T Tabangao" and/or that
the cargo of the vessel was stolen or the subject of theft or robbery or
piracy; (3) the trial court erred in finding him guilty as an accomplice
to the crime of qualified piracy under Section 4 of Presidential
Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4)
the trial court erred in convicting and punishing him as an
accomplice when the acts allegedly committed by him were done or
executed outside of Philippine waters and territory, stripping the
Philippine courts of jurisdiction to hold him for trial, to convict, and
sentence; (5) the trial court erred in making factual conclusions
without evidence on record to prove the same and which in fact are
contrary to the evidence adduced during trial; (6) the trial court erred
in convicting him as an accomplice under Section 4 of Presidential
Decree No. 532 when he was charged as a principal by direct
participation under said decree, thus violating his constitutional right
to be informed of the nature and cause of the accusation against him.
Cheong also posits that the evidence against the other accused-
appellants do not prove any participation on his part in the
commission of the crime of qualified piracy. He further argues that
he had not in any way participated in the seajacking of "M/T
Tabangao" and in committing the crime of qualified piracy, and that
he was not aware that the vessel and its cargo were pirated.
As legal basis for his appeal, he explains that he was charged under
the information with qualified piracy as principal under Section 2 of
Presidential Decree No. 532 which refers to Philippine waters. In the
case at bar, he argues that he was convicted for acts done outside
Philippine waters or territory. For the State to have criminal
jurisdiction, the act must have been committed within its territory.
We affirm the conviction of all the accused-appellants.
The issues of the instant case may be summarized as follows: (1)
what are the legal effects and implications of the fact that a non-
lawyer represented accused-appellants during the trial?; (2) what are
the legal effects and implications of the absence of counsel during
the custodial investigation?; (3) did the trial court err in finding that
the prosecution was able to prove beyond reasonable doubt that
accused-appellants committed the crime of qualified piracy?; (4) did
Republic Act No. 7659 obliterate the crime committed by accused-
appellant Cheong?; and (5) can accused-appellant Cheong be
convicted as accomplice when he was not charged as such and when
the acts allegedly committed by him were done or executed outside
Philippine waters and territory?
On the first issue, the record reveals that a manifestation (Exhibit
"20", Record) was executed by accused-appellants Tulin, Loyola,
Changco, and Infante, Jr. on February 11, 1991, stating that they
were adopting the evidence adduced when they were represented by
a non-lawyer. Such waiver of the right to sufficient representation
during the trial as covered by the due process clause shall only be
valid if made with the full assistance of a bona fide lawyer. During
the trial, accused-appellants, as represented by Atty. Abdul Basar,
made a categorical manifestation that said accused-appellants were
apprised of the nature and legal consequences of the subject
manifestation, and that they voluntarily and intelligently executed the
same. They also affirmed the truthfulness of its contents when asked
in open court (tsn, February 11, 1992, pp. 7-59). It is true that an
accused person shall be entitled to be present and to defend himself
in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of judgment (Section 1, Rule 115,
Revised Rules of Criminal Procedure). This is hinged on the fact that
a layman is not versed on the technicalities of trial. However, it is
also provided by law that "[r]ights may be waived, unless the waiver
is contrary to law, public order, public policy, morals, or good
customs or prejudicial to a third person with right recognized by
law." (Article 6, Civil Code of the Philippines). Thus, the same
section of Rule 115 adds that "[u]pon motion, the accused may be
allowed to defend himself in person when it sufficiently appears to
the court that he can properly protect his rights without the assistance
of counsel." By analogy , but without prejudice to the sanctions
imposed by law for the illegal practice of law, it is amply shown that
the rights of accused-appellants were sufficiently and properly
protected by the appearance of Mr. Tomas Posadas. An examination
of the record will show that he knew the technical rules of procedure.
Hence, we rule that there was a valid waiver of the right to sufficient
representation during the trial, considering that it was unequivocally,
knowingly, and intelligently made and with the full assistance of a
bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due
process cannot be successfully invoked where a valid waiver of
rights has been made (People vs. Serzo, 274 SCRA 553 [1997];
Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during
custodial investigation may not be waived except in writing and in
the presence of counsel.
Section 12, Article III of the Constitution reads:
SEC. 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel,
he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations
of this section as well as compensation to and rehabilitation of
victims of torture or similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436
[1966]) which gave birth to the so-called Miranda doctrine which is
to the effect that prior to any questioning during custodial
investigation, the person must be warned that he has a right to remain
silent, that any statement he gives may be used as evidence against
him, and that he has the right to the presence of an attorney, either
retained or appointed. The defendant may waive effectuation of these
rights, provided the waiver is made voluntarily, knowingly, and
intelligently. The Constitution even adds the more stringent
requirement that the waiver must be in writing and made in the
presence of counsel.
Saliently, the absence of counsel during the execution of the so-
called confessions of the accused-appellants make them invalid. In
fact, the very basic reading of the Miranda rights was not even
shown in the case at bar. Paragraph [3] of the aforestated Section 12
sets forth the so-called "fruit from the poisonous tree doctrine," a
phrase minted by Mr. Justice Felix Frankfurter in the celebrated case
of Nardone vs. United States (308 U.S. 388 [1939]). According to
this rule, once the primary source (the "tree") is shown to have been
unlawfully obtained, any secondary or derivative evidence (the
"fruit") derived from it is also inadmissible. The rule is based on the
principle that evidence illegally obtained by the State should not be
used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained (People vs.
Alicando, 251 SCRA 293 [1995]).  Thus, in this case, the
uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible and
whatever information is derived therefrom shall be regarded as
likewise inadmissible in evidence against them.
However, regardless of the inadmissibility of the subject confessions,
there is sufficient evidence to convict accused-appellants with moral
certainty. We agree with the sound deduction of the trial court that
indeed, Emilio Changco (Exhibits "U" and "UU") and accused-
appellants Tulin, Loyola, .and Infante, Jr. did conspire and
confederate to commit the crime charged.  In the words of then trial
judge, now Justice Romeo J. Callejo of the Court of Appeals -
...The Prosecution presented to the Court an array of witnesses,
officers and members of the crew of the "M/T Tabangao" no less,
who identified and pointed to the said Accused as among those who
attacked and seized, the "M/T Tabangao" on March 2, 1991, at about
6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its
cargo, and brought the said vessel, with its cargo, and the officers
and crew of the vessel, in the vicinity of Horsebough Lighthouse,
about sixty-six nautical miles off the shoreline of Singapore and sold
its cargo to the Accused Cheong San Hiong upon which the cargo
was discharged from the "M/T Tabangao" to the "Navi Pride" for the
price of about $500,000.00 (American Dollars) on March 29, and 30,
1991...
x           x           x
x           x           x
x           x           x
The Master, the officers and members of the crew of the "M/T
Tabangao" were on board the vessel with the Accused and their
cohorts from March 2, 1991 up to April 10, 1991 or for more than
one (1) month.  There can be no scintilla of doubt in the mind of the
Court that the officers and crew of the vessel could and did see and
identify the seajackers and their leader. In fact, immediately after the
Accused were taken into custody by the operatives of the National
Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian
Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit
"B") and pointed to and identified the said Accused as some of the
pirates.
x           x           x
x           x           x
x           x           x
Indeed, when they testified before this Court on their defense, the
three (3) Accused admitted to the Court that they, in fact, boarded
the said vessel in the evening of March 2 1991 and remained on
board when the vessel sailed to its, destination, which turned out to
be off the port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants'
defense of denial is not supported by any hard evidence but their
bare testimony. Greater weight is given to the categorical
identification of the accused by the prosecution witnesses than to the
accused's plain denial of participation in the commission of the crime
(People v. Baccay, 284 SCRA 296 [1998]).  Instead, accused-
appellants Tulin, Loyola, and Infante, Jr. narrated a patently
desperate tale that they were hired by three complete strangers
(allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Apkaya, Balibago,
Calatagan, Batangas, to work on board the "M/T Tabangao" which
was then anchored off-shore.  And readily, said accused-appellants
agreed to work as cooks and handymen for an indefinite period of
time without even saying goodbye to their families, without even
knowing their destination or the details of their voyage, without the
personal effects needed for a long voyage at sea. Such evidence is
incredible and clearly not in accord with human experience.  As
pointed out by the trial court, it is incredible that Captain Liboon,
Second Mate Torralba, and their companion "had to leave the vessel
at 9:30 o'clock in the evening and venture in a completely unfamiliar
place merely to recruit five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense of denial with the alibi
that on May 14 and 17, he was at his place of work and that on April
10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it
to state that alibi is fundamentally and inherently a weak defense,
much more so when uncorroborated by other witnesses (People v.
Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate
and concoct, and difficult to disprove. Accused-appellant must
adduce clear and convincing evidence that, at about midnight on
April 10, 1991, it was physically impossible for him to have been in
Calatagan, Batangas. Changco not only failed to do this, he was
likewise unable to prove that he was in his place of work on the dates
aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a
testimony is accorded the highest respect, for trial courts have an
untrammeled opportunity to observe directly the demeanor of
witnesses and, thus, to determine whether a certain witness is telling
the truth (People v. Obello, 284 SCRA 79 [1998]).
We likewise uphold the trial court's finding of conspiracy.  A
conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it
(Article 8, Revised Penal Code).  To be a conspirator, one need not
participate in every detail of execution; he need not even take part in
every act or need not even know the exact part to be performed by
the others in the execution of the conspiracy.  As noted by the trial
court, there are times when conspirators are assigned separate and
different tasks which may appear unrelated to one another, but in
fact, constitute a whole and collective effort to achieve a common
criminal design.
We affirm the trial court's finding that Emilio Changco, accused-
appellants Tulin, Loyola, and Infante, Jr. and others, were the ones
assigned to attack and seize the "M/T Tabangao" off Lubang,
Mindoro, while accused-appellant Cecilio Changco was to fetch the
master and the members of the crew from the shoreline of Calatagan,
Batangas after the transfer, and bring them to Imus, Cavite, and to
provide the crew and the officers of the vessel with money for their
fare and food provisions on their way home. These acts had to be
well-coordinated. Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of "M/T Tabangao" since
he performed his task in view of an objective common to all other
accused- appellants.
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother
of Emilio Changco (aka Captain Bobby/Captain Roberto
Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio
worked for his brother in said corporation. Their residences are
approximately six or seven kilometers away from each other. Their
families are close. Accused-appellant Tulin, on the other hand, has
known Cecilio since their parents were neighbors in Aplaya,
Balibago, Calatagan, Batangas.  Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity .Besides, Loyola and
Emilio Changco had both been accused in a seajacking case
regarding "M/T Isla Luzon" and its cargo of steel coils and plates off
Cebu and Bohol in 1989.  Emilio Changco (aka Kevin Ocampo) was
convicted of the crime while Loyola at that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer
be convicted of piracy in Philippine waters as defined and penalized
in Sections 2[d] and 3[a], respectively of Presidential Decree No.
532 because Republic Act No. 7659 (effective January 1, 1994)
which amended Article 122 of the Revised Penal Code, has
impliedly superseded Presidential Decree No. 532. He reasons out
that Presidential Decree No. 532 has been rendered "superfluous or
duplicitous" because both Article 122 of the Revised Penal Code, as
amended, and Presidential Decree No. 532 punish piracy committed
in Philippine waters.  He maintains that in order to reconcile the two
laws, the word "any person" mentioned in Section 1 [d]of
Presidential Decree No. 532 must be omitted such that Presidential
Decree No. 532 shall only apply to offenders who are members of
the complement or to passengers of the vessel, whereas Republic Act
No. 7659 shall apply to offenders who are neither members of the
complement or passengers of the vessel, hence, excluding him from
the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
Article 122. Piracy in general and mutiny on the high seas. -The
penalty of reclusion temporal shall be inflicted upon any person
who, on the high seas, shall attack or seize a vessel or, not being a
member of its complement nor a passenger, shall seize the whole or
part of the cargo of said vessel, its equipment, or personal belongings
of its complement or passengers.
(Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994),
reads:
Article 122. Piracy in general and mutiny on the high seas or in
Philippine waters. -The penalty of reclusion perpetua shall be
inflicted upon any person who, on the high seas, or in Philippine
waters, shall attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or part of the
cargo of said vessel, its equipment, or personal belongings of its
complement or passengers.

(Underscoring ours)
On the other hand, Section 2 of Presidential Decree No. 532
provides:
SEC. 2. Definition of Terms. - The following shall mean and be
understood, as follows:
d. Piracy. -Any attack upon or seizure of any vessel, or the taking
away of the whole or part thereof or its cargo, equipment, or the
personal belongings of its complement or passengers, irrespective of
the value thereof, by means of violence against or intimidation of
persons or force upon things, committed by any person. including a
passenger or member of the complement of said vessel in Philippine
waters, shall be considered as piracy.  The offenders shall be
considered as pirates and punished as hereinafter provided
(underscoring supplied).
To summarize, Article 122 of the Revised Penal Code, before its
amendment, provided that piracy must be committed on the high seas
by any person not a member of its complement nor a passenger
thereof.  Upon its amendment by Republic Act No. 7659, the
coverage of the pertinent provision was widened to include offenses
committed "in Philippine waters." On the other hand, under
Presidential Decree No. 532 (issued in 1974), the coverage of the law
on piracy embraces any person including "a passenger or member of
the complement of said vessel in Philippine waters." Hence,
passenger or not, a member of the complement or not, any person is
covered by the law.
Republic Act No. 7659 neither superseded nor amended the
provisions on piracy under Presidential Decree No. 532. There is no
contradiction between the two laws. There is likewise no ambiguity
and hence, there is no need to construe or interpret the law. All the
presidential decree did was to widen the coverage of the law, in
keeping with the intent to protect the citizenry as well as neighboring
states from crimes against the law of nations. As expressed in one of
the "whereas" clauses of Presidential Decree No. 532, piracy is
"among the highest forms of lawlessness condemned by the penal
statutes of all countries." For this reason, piracy under the Article
122, as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.
As regards the contention that the trial court did not acquire
jurisdiction over the person of accused-appellant Hiong since the
crime was committed outside Philippine waters, suffice it to state
that unquestionably, the attack on and seizure of "M/T Tabangao"
(renamed "M/T Galilee" by the pirates) and its cargo were committed
in Philippine waters, although the captive vessel was later brought by
the pirates to Singapore where its cargo was off-loaded, transferred,
and sold. And such transfer was done under accused-appellant
Hiong's direct supervision.  Although Presidential Decree No. 532
requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence,
the same need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised
Penal Code. As such, it is an exception to the rule on territoriality in
criminal law. The same principle applies even if Hiong, in the instant
case, were charged, not with a violation of qualified piracy under the
penal code but under a special law, Presidential Decree No. 532
which penalizes piracy in Philippine waters.  Verily, Presidential
Decree No. 532 should be applied with more force here since its
purpose is precisely to discourage and prevent piracy in Philippine
waters (People v. Catantan, 278 SCRA 761 [1997]).  It is likewise,
well-settled that regardless of the law penalizing the same, piracy is a
reprehensible crime against the whole world (People v. Lol-lo, 43
Phil. 19 [1922]).
However, does this constitute a violation of accused-appellant's
constitutional right to be informed of the nature and cause of the
accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even
though he was charged as a principal by direct participation under
Section 2 of said law?
The trial court found that there was insufficiency of evidence
showing:
(a) that accused-appellant Hiong directly participated in the attack
and seizure of "M/T Tabangao" and its cargo; (b) that he induced
Emilio Changco and his group in the attack and seizure of "M/T
Tabangao" and its cargo; ( c) and that his act was indispensable in
the attack on and seizure of "M/T Tabangao" and its cargo.
Nevertheless, the trial court found that accused-appellant Hiong's
participation was indisputably one which aided or abetted Emilio
Changco and his band of pirates in the disposition of the stolen cargo
under Section 4 of Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway robbers/brigands or abetting
piracy or highway robbery brigandage. -Any person who knowingly
and in any manner aids or protects pirates or highway
robbers/brigands, such as giving them information about the
movement of police or other peace officers of the government, or
acquires or receives property taken by such pirates or brigands or in
any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway
robbery or brigandage, shall be considered as an accomplice of the
principal officers and be punished in accordance with Rules
prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts
provided in this Section has performed them knowingly, unless the
contrary is proven.
The ruling of the trial court is Within well-settle jurisprudence that if
there is lack of complete evidence of conspiracy, the liability is that
of an accomplice and not as principal (People v. Tolentino, 40 SCRA
514 [1971]). Any doubt as to the participation of an individual in the
commission of the crime is always resolved in favor of lesser
responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs.
Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA
498 [1971]).
Emphasis must also be placed on the last paragraph of Section 4 of
Presidential Decree No 532 which presumes that any person who
does any of the acts provided in said section has performed them
knowingly, unless the contrary is proven. In the case at bar, accused-
appellant Hiong had failed to overcome the legal presumption that he
knowingly abetted or aided in the commission of piracy, received
property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates
in disposing of the stolen cargo by personally directing its transfer
from "M/T Galilee" to "M/T Navi Pride".  He profited therefrom by
buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn,
June 3, 1992, pp. 15-23).  He even tested the quality and verified the
quantity of the petroleum products, connived with Navi Marine
Services personnel in falsifying the General Declarations and Crew
List to ensure that the illegal transfer went through, undetected by
Singapore Port Authorities, and supplied the pirates with food, beer,
and other provisions for their maintenance while in port (tsn, June 3,
1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival
and Departure) and Crew List was accomplished and utilized by
accused-appellant Hiong and Navi Marine Services personnel in the
execution of their scheme to avert detection by Singapore Port
Authorities. Hence, had accused-appellant Hiong not falsified said
entries, the Singapore Port Authorities could have easily discovered
the illegal activities that took place and this would have resulted in
his arrest and prosecution in Singapore. Moreover, the transfer of the
stolen cargo from "M/T Galilee" to "Navi Pride" could not have been
effected.
We completely uphold the factual findings of the trial court showing
in detail accused-appellant Hiong's role in the disposition of the
pirated goods summarized as follows: that on March 27, 1991, Hiong
with Captain Biddy Santos boarded the "Navi Pride," one of the
vessels of the Navi Marine, to rendezvous with the "M/T Galilee";
that the firm submitted the crew list of the vessel (Exhibit "8-CSH",
Record) to the port authorities, excluding the name of Hiong; that the
"General Declaration" (for departure) of the "Navi Pride" for its
voyage off port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was scheduled to depart at 2200
(10 o'clock in the evening), that there were no passengers on board,
and the purpose of the voyage was for "cargo operation" and that the
vessel was to unload and transfer 1,900 tons of cargo; that after the
transfer of the fuel from "M/T Galilee" with' Emilio Changco a. k. a.
Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor
prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record)
stating that the cargo transferred to the "Navi Pride" was 2,406 gross
cubic meters; that although Hiong was not the Master of the vessel,
he affixed his signature on the "Certificate" above the word "Master"
(Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but
did not require any receipt for the amount; that Emilio Changco also
did not issue one; and that in the requisite "General Declaration"
upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the
evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to
falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on
the high seas during said voyage when in fact it acquired from the
"M/T Galilee" 2,000 metric tons of diesel oil.  The second transfer
transpired with the same irregularities as discussed above. It was
likewise supervised by accused- appellant Cheong from his end
while Emilio Changco supervised the transfer from his end.
Accused-appellant Hiong maintains that he was merely following the
orders of his superiors and that he has no knowledge of the illegality
of the source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge
of the source and nature of the cargo since he himself received the
same from "M/T Tabangao". Second, considering that he is a highly
educated mariner, he should have avoided any participation in the
cargo transfer given the very suspicious circumstances under which
it was acquired.  He failed to show a single piece of deed or bill of
sale or even a purchase order or any contract of sale for the purchase
by the firm; he never bothered to ask for and scrutinize the papers
and documentation relative to the "M/T Galilee"; he did not even
verify the identity of Captain Robert Castillo whom he met for the
first time nor did he check the source of the cargo; he knew that the
transfer took place 66 nautical miles off Singapore in the dead of the
night which a marine vessel of his firm did not ordinarily do; it was
also the first time Navi Marine transacted with Paul Gan involving a
large sum of money without any receipt issued therefor; he was not
even aware if Paul Gan was a Singaporean national and thus safe to
deal with. It should also be noted that the value of the cargo was
P40,426,793.87 or roughly more than US$l,000,000.00 (computed at
P30.00 to $1, the exchange rate at that time). Manifestly, the cargo
was sold for less than one-half of its value. Accused-appellant Hiong
should have been aware of this irregularity. Nobody in his right mind
would go to far away Singapore, spend much time and money for
transportation -only to sell at the aforestated price if it were
legitimate sale involved. This, in addition to the act of falsifying
records, clearly shows that accused-appellant Hiong was well aware
that the cargo that his firm was acquiring was purloined.
Lastly, it cannot be correctly said that accused-appellant was "merely
following the orders of his superiors." An individual is justified in
performing an act in obedience to an order issued by a superior if
such order, is for some lawful purpose and that the means used by
the subordinate to carry out said order is lawful (Reyes, Revised
Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of
Hiong's superior Chua Kim Leng Timothy, is a patent violation not
only of Philippine, but of international law. Such violation was
committed on board a Philippine-operated vessel. Moreover, the
means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified
records, using a mere clerk, Frankie Loh, to consummate said acts.
During the trial, Hiong presented himself, and the trial court was
convinced, that he was an intelligent and articulate Port Captain.
These circumstances show that he must have realized the nature and
the implications of the order of Chua Kim Leng Timothy. Thereafter,
he could have refused to follow orders to conclude the deal and to
effect the transfer of the cargo to the "Navi Pride."  He did not do so,
for which reason, he must now suffer the consequences of his
actions.

WHEREFORE, finding the conviction of accused-appellants

justified by the evidence on record, the Court hereby AFFIRMS the
judgment of the trial court in toto.

SO ORDERED.

Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez,

JJ., concur.

Batas.org 
 Supreme Court of the Philippines
43 Phil. 19  again placed on it and holes were made in it, with the idea that it
G. R. No. 17958, February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF
AND APPELLEE, VS. LOL-LO AND SARAW, DEFENDANTS
AND APPELLANTS.
DECISION
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque
buccaneers like Captain A very and Captain Kidd and Bartholomew
Roberts gripped the imagination, when grotesque brutes like
Blackbeard flourished, seem far away in the pages of history and
romance. Nevertheless, the record before us tells a tale of twentieth
century piracy in the south seas, but stripped of all touches of
chivalry or of generosity, so as to present a horrible case of rapine
and near murder.
On or about June 30, 1920, two boats left Matuta, a Dutch
possession, for Peta, another Dutch possession. In one of the boats
was one individual, a Dutch subject, and in the other boat eleven
men, women, and children, likewise subjects of Holland. After a
number of days of navigation, at about 7 o'clock in the evening, the
second boat arrived between the Islands of Buang and Bukid in the
Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first
asked for food, but once on the Dutch boat, took for themselves all of
the cargo, attacked some of the men, and brutally violated two of the
women by methods too horrible to be described. All of the persons
on the Dutch boat, with the exception of the two young women, were
would submerge/although as a matter of fact, these people, after
eleven days of hardship and privation, were succored. Taking the
two women with them, and repeatedly violating them, the Moros
finally arrived at Maruro, a Dutch possession. Two of the Moro
marauders were Lol-lo, who also raped one of the women, and
Saraw, At Maruro the two women were able to escape.
Lol-lo and Saraw Lol-lo and Saraw later returned to their home in
South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were
arrested and were charged in the Court of First Instance of Sulu with
the crime of piracy. A demurrer was interposed by counsel de
officio for the Moros, based on the grounds that the offense charged
was not within the jurisdiction of the Court of First Instance, nor of
any court of the Philippine Islands, and that the facts did not
constitute a public offense, under the laws in force in the Philippine
Islands. After the demurrer was overruled by the trial judge, a trial
was had, and a judgment was rendered finding the two defendants
guilty and sentencing each of them to life imprisonment (cadena
perpetua), to return together with Kinawalang and Maulanis,
defendants in another case, to the offended parties, the thirty-nine
sacks of coprax which had been robbed, or to indemnify them in the
amount of 924 rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by
the attorney de officio. By a process of elimination, however, certain
questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of
piracy are present. Piracy is robbery or forcible depredation on the
high seas, without lawful authority and done animo furandi, and in
the spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the
lower court and as is again done in this court, that the Court of First
Instance was without jurisdiction of the case. Pirates are in
law hostes humani generis. Piracy is a crime not against any
particular state but against all mankind. It may be punished in the
competent tribunal of any country where the offender may be found
or into which he may be carried. The jurisdiction of piracy unlike all
other crimes has no territorial limits. As it is against all so may it be
punished by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for those
limits, though neutral to war, are not neutral to crimes." ( U. S. vs.
Furlong [1820], 5 Wheat, 184.)
The most serious question which is squarely presented to this court
for decision for the first time is whether or not the provisions of the
Penal Code dealing with the crime of piracy are still in force.
Articles 153 to 156 of the Penal Code read as follows:
"ART. 153. The crime of piracy committed against Spaniards, or the
subjects of another nation not at war with Spain, shall be punished
with a penalty ranging from cadena temporal to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another
nation at war with Spain, it shall be punished with the penalty of
presidio mayor.
"ART. 154. Those who commit the crimes referred to in the first
paragraph of the next preceding article shall suffer the penalty
of cadena perpetua or death, and those who commit the crimes
referred to in the second paragraph of the same article, from cadena
temporal to cadena perpetua:
"1. Whenever they have seized some vessel by boarding or firing
upon the same.
"2. Whenever the crime is accompanied by murder, homicide, or by
any of the physical injuries specified in articles four hundred and
fourteen and four hundred and fifteen and in paragraphs one and two
of article four hundred and sixteen.
"3. Whenever it is accompanied by any of the offenses against
chastity specified in Chapter II, Title IX, of this book.
"4. Whenever the pirates have abandoned any persons without means
of saving themselves.
"5. In every case, the captain or skipper of the pirates.
"ART. 155. With respect to the provisions of this title, as well as all
others of this code, when Spain is mentioned it shall be understood
as including any part of the national territory.
"ART. 156. For the purpose of applying the provisions of this code,
every person, who, according to the Constitution of the Monarchy,
has the status of a Spaniard shall be considered as such."
The general rules of public law recognized and acted on by the
United States relating to the effect of a transfer of territory from
another State to the United States are well- known. The political law
of the former sovereignty is necessarily changed. The municipal law
in so far as it is consistent with the Constitution, the laws of the
United States, or the characteristics and institutions of the
government, remains in force. As a corollary to the main rules, laws
subsisting at the time of transfer, designed to secure good order and
peace in the community, which are strictly of a municipal character,
continue until by direct action of the new government they are
altered or repealed. (Chicago, Rock Island, etc., R. Co. vs. McGlinn
[1885], 114 U. S., 542.)
These principles, of the public law were given specific application to
the Philippines by the Instructions of President McKinley of May 19,
1898, to General Wesley Merritt, the Commanding General of the
Army of Occupation in the Philippines, when he said:
"Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political Condition of
the inhabitants, the municipal laws of the conquered territory, such
as affect private rights of person and property, and provide for the
punishment of crime, are considered as continuing in force, so far as
they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in
force, and to be administered by the ordinary tribunals, substantially
as they were before the occupation. This enlightened practice is, so
far as possible, to be adhered to on the present occasion." (Official
Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General
Merritt's Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code
dealing with piracy were meant to include the Philippine Islands.
Article 156 of the Penal Code in relation to article 1 of the
Constitution of the Spanish Monarchy, would also make the
provisions of the Code applicable not only to Spaniards but to
Filipinos.
The opinion of Grotius was that piracy by the law of nations is the
same thing as piracy by the civil law, and he has never been
disputed. The specific provisions of the Penal Code are similar in
tenor to statutory provisions elsewhere and to the concepts of the
public law. This must necessarily be so, considering that the Penal
Code finds its inspiration in this respect in the Novelas, the Partidas,
and the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall
have the power to define and punish piracies and felonies committed
on the high seas, and offenses against the law of nations. ( U. S.
Const. Art. I, sec. 8, ,cl. 10.) The Congress;, in putting on the statute
books the necessary ancillary legislation, provided that whoever, on
the high seas, commits the crime of piracy as defined by the law of
nations, and is afterwards brought into or found in the United States,
shall be imprisoned for life. (U. S. Crim. Code, sec. 290; penalty
formerly death: U. S. Rev. Stat., sec. 5368.) The framers of the
Constitution and the members of Congress were content to let a
definition of piracy rest on its universal conception under the law of
nations.
It is evident that the provisions of the Penal Code now in force in the
Philippines relating to piracy are not inconsistent with the
corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the
United States. A logical construction of articles of the Penal Code,
like the articles dealing with the crime of piracy, would be that
wherever " Spain" is mentioned, it should be substituted by the
words " United States" and wherever "Spaniards" are mentioned, the
word should be substituted by the expression "citizens of the United
States and citizens of the Philippine Islands." Somewhat similar
reasoning led this court in the case of United States vs. Smith
([1919], 39 Phil., 533) to give to the word "authority" as found in the
Penal Code a limited meaning, which would no longer comprehend
all religious, military, and civil officers, but only public officers in
the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal
Code would read as follows:
"The crime of piracy committed against citizens of the United States
and citizens of the Philippine Islands, or the subjects of another
nation not at war with the United States, shall be punished with a
penalty ranging from cadena temporal to cadena perpetua.
"If the crime be committed against nonbelligerent subjects of another since one member of the court, Mr. Justice Romualdez, registers his
nation at war with the United States, it shall be punished with the nonconformity. In accordance with the provisions of Act No. 2726, it
penalty of presidio mayor." results, therefore, that the judgment of the trial court as to the
defendant and appellant Saraw is affirmed, and is reversed as to the
We hold those provisions of the Penal Code dealing with the crime defendant and appellant Lol-lo, who is found guilty of the crime of
of piracy, notably articles 153 and 154, to be still in force in the piracy and is sentenced therefor to be hung until dead, at such time
Philippines. and place as shall be fixed by the judge of first instance of the
Twenty-sixth Judicial District. The two appellants together with
The crime falls under the first paragraph of article 153 of the Penal Kinawalang and Maulanis, defendants in another case, shall
Code in relation to article 154. There are present at least two of the indemnify jointly and severally the offended parties in the equivalent
circumstances named in the last cited article as authorizing of 924 rupees, and shall pay a one-half part of the costs of both
either cadena perpetua or death. The crime of piracy was instances. So ordered.
accompanied by (1) an offense against chastity and (2) the
abandonment of persons without apparent means of saving Araullo, C. J., Johnson, Avanceña, Villamor, Ostrand,
themselves. It is, therefore, only necessary for us to determine as to Johns, and Romualdez, JJ., concur.
whether the penalty of cadena perpetua or death should be imposed.
In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one
mitigating circumstance of lack of instruction provided by article 11,
as amended, of the Penal Code, sentenced the accused to life
imprisonment. At least three aggravating circumstances, that the
wrong done in the commission of the crime was deliberately
Batas.org 
augmented by causing other wrongs not necessary for its
commission, that advantage was taken of superior strength, and that
means were employed which added ignominy to the natural effects
of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying
and aggravating circumstances here present, which cannot be offset
by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to
impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety
of the imposition of the death penalty upon the defendant and
appellant Lol-lo (the accused who raped one of the women), but is
not unanimous with regard to the defendant and appellant Saraw,
 Supreme Court of the Philippines Department of National Defense, HON. RAMON JESUS P.
PAJE, Secretary, Department of Environment and Natural
Resources, VICE ADMIRAL JOSE LUIS M.
ALANO, Philippine Navy Flag Officer in Command, Armed
Forces of the Philippines, ADMIRAL RODOLFO D. ISORENA,
Commandant, Philippine Coast Guard, COMMODORE
ENRICO EFREN EVANGELISTA, Philippine Coast Guard
Palawan, MAJOR GEN. VIRGILIO O.
DOMINGO, Commandant of Armed Forces of the Philippines
EN BANC Commandand LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercise Co-Director,
G.R. No. 206510, September 16, 2014 Respondents.

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto DECISION

Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus ofCaloocan, FRANCES Q. QUIMPO, VILLARAMA, JR., J.:
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BagongAlyansang Makabayan, HON. NERI JAVIER
COLMENARES, BayanMuna Party-list, ROLAND G. Before us is a petition for the issuance of a Writ of Kalikasan with
SIMBULAN, PH.D., Junk VFAMovement, TERESITA R.
prayer for the issuance of a Temporary Environmental Protection
PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise
Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI
A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang known as the Rules of Procedure for Environmental Cases (Rules),
Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE involving violations of environmental laws and regulations in
ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY relation to the grounding of the US military ship USS Guardian over
JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL the Tubbataha Reefs.
F. TUPAZ, Petitioners, VS. SCOTT H. SWIFT in his capacity as
Commander of the U.S. 7th Fleet, MARK A. RICE in his capacity Factual Background
as Commanding Officer of the USS Guardian, PRESIDENT
BENIGNO S. AQUINO III in his capacity as Commander-in- The name “Tubbataha” came from the Samal (seafaring people of
Chief of the Armed Forces of the Philippines, HON. ALBERT F. southern Philippines) language which means “long reef exposed at
DEL ROSARIO, Secretary, Department of Foreign Affairs, HON.
low tide.” Tubbataha is composed of two huge coral atolls – the
PAQUITO OCHOA, JR., Executive Secretary, Office of the
north atoll and the south atoll – and the Jessie Beazley Reef, a
President, HON. VOLTAIRE T. GAZMIN, Secretary,
smaller coral structure about 20 kilometers north of the atolls. The
reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan. [1]
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on
August 11, 1988. Located in the middle of Central Sulu Sea, 150
kilometers southeast of Puerto Princesa City, Tubbataha lies at the
heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage
Site. It was recognized as one of the Philippines’ oldest ecosystems,
containing excellent examples of pristine reefs and a high diversity
of marine life. The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and endangered
marine species. UNESCO cited Tubbataha’s outstanding universal
value as an important and significant natural habitat for in
situconservation of biological diversity; an example representing
significant on-going ecological and biological processes; and an area
of exceptional natural beauty and aesthetic importance. [2]
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,
[3]
 otherwise known as the “Tubbataha Reefs Natural Park (TRNP)
Act of 2009” “to ensure the protection and conservation of the
globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the
enjoyment of present and future generations.”  Under the “no-take”
policy, entry into the waters of TRNP is strictly regulated and many
human activities are prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing the resources within the
TRNP.  The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making
and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship
of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel “to
enter and exit the territorial waters of the Philippines and to arrive at
the port of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty.”[4]  On January 6, 2013, the ship left
Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a
brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its
next port of call in Makassar, Indonesia. On January 17, 2013 at 2:20
a.m. while transiting the Sulu Sea, the ship ran aground on the
northwest side of South Shoal of the Tubbataha Reefs, about 80
miles east-southeast of Palawan. No one was injured in the incident,
and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott
Swift, expressed regret for the incident in a press statement.
[5]
Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr.,
in a meeting at the Department of Foreign Affairs (DFA) on
February 4, “reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretary Albert F. del Rosario that the
United States will provide appropriate compensation for damage to
the reef caused by the ship.”[6] By March 30, 2013, the US Navy-led
salvage team had finished removing the last piece of the grounded
ship from the coral reef.
On April 17, 2013, the above-named petitioners on their behalf and
in representation of their respective sector/organization and others,
including minors or generations yet unborn, filed the present petition
against Scott H. Swift in his capacity as Commander of the US
7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps
Forces, Pacific and Balikatan 2013 Exercises Co-Director (“US
respondents”); President Benigno S. Aquino III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines (AFP),
DFA Secretary Albert F. Del Rosario, Executive Secretary Paquito
Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National
Defense), Secretary Jesus P. Paje (Department of Environment and
Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine
Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major General
Virgilio O. Domingo (AFP Commandant), collectively the
“Philippine respondents.”
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the provinces
of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental,
Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-
Tawi, which events violate their constitutional rights to a balanced
and healthful ecology. They also seek a directive from this Court for
the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in
connection with the grounding incident.
Specifically, petitioners cite the following violations committed by
US respondents under R.A. No. 10067: unauthorized entry (Section
19); non-payment of conservation fees (Section 21); obstruction of
law enforcement officer (Section 30); damages to the reef (Section
20); and destroying and disturbing resources (Section 26[g]).  but away from the damaged site and an additional
Furthermore, petitioners assail certain provisions of the Visiting
Forces Agreement (VFA) which they want this Court to nullify for
being unconstitutional.
The numerous reliefs sought in this case are set forth in the final
prayer of the petition, to wit:
1. WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court:
2. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO) and/or a
Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their
behalf, to cease and desist all operations over the
Guardian grounding incident;
b. Initially demarcating the metes and bounds of the
damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war
games under ‘Balikatan’ because of the absence of
clear guidelines, duties, and liability schemes for
breaches of those duties, and require Respondents to
assume responsibility for prior and future
environmental damage in general, and
environmental damage under the Visiting Forces
Agreement in particular.
d. Temporarily define and describe allowable
activities of ecotourism, diving, recreation, and
limited commercial activities by fisherfolk and
indigenous communities near or around the TRNP
buffer zone;
3. After summary hearing, issue a Resolution extending the
TEPO until further orders of the Court;
4. After due proceedings, render a Decision which shall
include, without limitation:
a. Order Respondents Secretary of Foreign Affairs ,
following the dispositive portion of Nicolas v.
Romulo, “to forthwith negotiate with the United
States representatives for the appropriate
agreement on [environmental guidelines and
environmental accountability] under Philippine
authorities as provided in Art. V[ ] of the VFA…”
b. Direct Respondents and appropriate agencies
to commence administrative, civil, and criminal
proceedings against erring officers and individuals
to the full extent of the law, and to make such
proceedings public;
c. Declare that Philippine authorities may exercise
primary and exclusive criminal jurisdiction over
erring U.S. personnel under the circumstances of this
case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious
claims for damages caused to the Tubbataha Reef on
terms and conditions no less severe than those
applicable to other States, and damages for personal
injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and
production of evidence, including seizure and
delivery of objects connected with the offenses
related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the
United States to notify each other of the disposition
of all cases, wherever heard, related to the grounding
of the Guardian;
g. Restrain Respondents from proceeding with any
purported restoration, repair, salvage or post salvage
plan or plans, including cleanup plans covering the
damaged area of the Tubbataha Reef absent a just
settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and
LGU consultations in accordance with the Local
Government Code and R.A. 10067;
i. Require Respondent US officials and their
representatives to place a deposit to the TRNP Trust
Fund defined under Section 17 of RA 10067 as a
bona fide gesture towards full reparations;
j. Direct Respondents to undertake measures to
rehabilitate the areas affected by the grounding of
the Guardian in light of Respondents’ experience in
the Port Royale grounding in 2009, among other
similar grounding incidents;
k. Require Respondents to regularly publish on a
quarterly basis and in the name of transparency and
accountability such environmental damage
assessment, valuation, and valuation methods, in all
stages of negotiation;
l. Convene a multisectoral technical working group to
provide scientific and technical support to the
TPAMB;
m. Order the Department of Foreign Affairs,
Department of National Defense, and the
Department of Environment and Natural Resources
to review the Visiting Forces Agreement and the
Mutual Defense Treaty to consider whether their
provisions allow for the exercise of
erga omnes rights to a balanced and healthful
ecology and for damages which follow from any
violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged
areas of TRNP;
o. Declare the grant of immunity found in Article V
(“Criminal Jurisdiction”) and Article VI of the
Visiting Forces Agreement unconstitutional for
violating equal protection and/or for violating the
preemptory norm of nondiscrimination incorporated
as part of the law of the land under Section 2, Article
II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the
Tubbataha Reefs in all other respects; and
5. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable
under the premises.[7] (Underscoring supplied.)
Since only the Philippine respondents filed their comment [8] to the
petition, petitioners also filed a motion for early resolution and
motion to proceed ex parte against the US respondents.[9]
Respondents’ Consolidated Comment
In their consolidated comment with opposition to the application for
a TEPO and ocular inspection and production orders, respondents
assert that: (1) the grounds relied upon for the issuance of a TEPO or
writ of Kalikasan have become fait accompli as the salvage
operations on the USS Guardian were already completed; (2) the
petition is defective in form and substance; (3) the petition
improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and (4) the
determination of the extent of responsibility of the US Government
as regards the damage to the Tubbataha Reefs rests exclusively with
the executive branch.
The Court’s Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is “a right of appearance in a court of justice on a given
question.”[10] Specifically, it is “a party’s personal and substantial
interest in a case where he has sustained or will sustain direct injury
as a result” of the act being challenged, and “calls for more than just
a generalized grievance.”[11] However, the rule on standing is a
procedural matter which this Court has relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers and legislators when the
public interest so requires, such as when the subject matter of the
controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest. [12]
In the landmark case of Oposa v. Factoran, Jr.,[13] we recognized the
“public right” of citizens to “a balanced and healthful ecology which,
for the first time in our constitutional history, is solemnly
incorporated in the fundamental law.” We declared that the right to a
balanced and healthful ecology need not be written in the
Constitution for it is assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with
intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment. [14]
On the novel element in the class suit filed by the petitioners minors
in Oposa, this Court ruled that not only do ordinary citizens have
legal standing to sue for the enforcement of environmental rights,
they can do so in representation of their own and future generations.
Thus:
Petitioners minors assert that they represent their generation as well
as generations yet unborn. We find no difficulty in ruling that they
can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the
concept of intergenerational responsibility insofar as the right to
a balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers the “rhythm and harmony of
nature.”Nature means the created world in its entirety. Such rhythm
and harmony indispensably include, inter alia, the judicious
disposition, utilization, management, renewal and conservation of
the country’s forest, mineral, land, waters, fisheries, wildlife, off-
shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to
the present as well as future generations. Needless to say, every
generation has a responsibility to the next to preserve that rhythm
and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors’ assertion of their right to
a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the
generations to come.[15] (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it
refers to minors and generations yet unborn, is now enshrined in the
Rules which allows the filing of a citizen suit in environmental cases.
The provision on citizen suits in the Rules “collapses the traditional
rule on personal and direct interest, on the principle that humans are
stewards of nature.”[16]
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over the
US respondents who did not submit any pleading or manifestation in
this case.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State,[17] is expressly
provided in Article XVI of the 1987 Constitutionwhich states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,[18]we discussed the
principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one
of the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2. x x
x.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the doctrine
of incorporation. Under this doctrine, as accepted by the majority of
states, such principles are deemed incorporated in the law of every
civilized state as a condition and consequence of its membership in
the society of nations. Upon its admission to such society, the state is
automatically obligated to comply with these principles in its
relations with other states.
As applied to the local state, the doctrine of state immunity is based
on the justification given by Justice Holmes that “there can be no
legal right against the authority which makes the law on which the
right depends.”[Kawanakoa v. Polybank, 205 U.S. 349] There are
other practical reasons for the enforcement of the doctrine. In the
case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par
in parem, non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case, “unduly
vex the peace of nations.” [De Haber v. Queen of Portugal, 17 Q.
B. 171]
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative
act to satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must be
regarded as against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a
situation, the state may move to dismiss the complaint on the ground
that it has been filed without its consent.[19] (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the
Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,[20] we further expounded
on the immunity of foreign states from the jurisdiction of local
courts, as follows:
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign
from suit and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign capacity. If the
acts giving rise to a suit are those of a foreign government done
by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could
be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to
be, in effect, suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he
is, under the maxim - par in parem, non habet imperium - thatall
states are sovereign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment
against an official would require the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the
amount needed to pay the damages decreed against him, the suit
must be regarded as being against the state itself, although it has not
been formally impleaded.[21] (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic
immunity, the privilege is not an immunity from the observance of
the law of the territorial sovereign or from ensuing legal liability; it
is, rather, an immunity from the exercise of territorial jurisdiction. [22]
In United States of America v. Judge Guinto,[23] one of the
consolidated cases therein involved a Filipino employed at Clark Air
Base who was arrested following a buy-bust operation conducted by
two officers of the US Air Force, and was eventually dismissed from
his employment when he was charged in court for violation of R.A.
No. 6425. In a complaint for damages filed by the said employee
against the military officers, the latter moved to dismiss the case on
the ground that the suit was against the US Government which had
not given its consent. The RTC denied the motion but on a petition
for certiorari and prohibition filed before this Court, we reversed the
RTC and dismissed the complaint. We held that petitioners US
military officers were acting in the exercise of their official functions
when they conducted the buy-bust operation against the complainant
and thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they cannot be
directly impleaded for acts imputable to their principal, which has
not given its consent to be sued.
This traditional rule of State immunity which exempts a State from
being sued in the courts of another State without the former’s
consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (jure imperii) from
private, commercial and proprietary acts (jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to
acts jure imperii.  The restrictive application of State immunity is
proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or
economic affairs.[24]
In Shauf v. Court of Appeals,[25] we discussed the limitations of the
State immunity principle, thus:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by
Justice Zaldivar in Director of the Bureau of Telecommunications, et
al. vs. Aligaen, etc., et al.:  “Inasmuch as the State authorizes only
legal acts by its officers, unauthorized acts of government officials or
officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such
acts, for the protection of his rights, is not a suit against the State
within the rule of immunity of the State from suit. In the same tenor,
it has been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under
an assumption of authority which he does not have, is not a suit
against the State within the constitutional provision that the State
may not be sued without its consent.” The rationale for this ruling is
that the doctrine of state immunity cannot be used as an instrument
for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act
done with malice and in bad faith, or beyond the scope of his
authority or jurisdiction.[26] (Emphasis supplied.)
In this case, the US respondents were sued in their official capacity
as commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act or
omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they were performing
official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and
appropriation of funds by the US government, the suit is deemed to
be one against the US itself. The principle of State immunity
therefore bars the exercise of jurisdiction by this Court over the
persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio
took the position that the conduct of the US in this case, when its
warship entered a restricted area in violation of R.A. No. 10067 and
caused damage to the TRNP reef system, brings the matter within the
ambit of Article 31 of the United Nations Convention on the Law of
the Sea (UNCLOS). He explained that while historically, warships
enjoy sovereign immunity from suit as extensions of their flag State,
Art. 31 of the UNCLOS creates an exception to this rule in cases
where they fail to comply with the rules and regulations of the
coastal State regarding passage through the latter’s internal waters
and the territorial sea.
According to Justice Carpio, although the US to date has not ratified
the UNCLOS, as a matter of long-standing policy the US considers
itself bound by customary international rules on the “traditional uses
of the oceans” as codified in UNCLOS, as can be gleaned from
previous declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal Caribbean
Cruise Lines, Ltd.[27]
The international law of the sea is generally defined as “a body of
treaty rules and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of jurisdiction over
maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the
oceans.”[28]  The UNCLOS is a multilateral treaty which was opened
for signature on December 10, 1982 at Montego Bay, Jamaica. It was
ratified by the Philippines in 1984 but came into force on November
16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to
balance State sovereignty (mare clausum) and the principle of
freedom of the high seas (mare liberum).[29] The freedom to use the
world’s marine waters is one of the oldest customary principles of
international law.[30] The UNCLOS gives to the coastal State
sovereign rights in varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels
depending on where the vessel is located.[31]
Insofar as the internal waters and territorial sea is concerned, the
Coastal State exercises sovereignty, subject to the UNCLOS and
other rules of international law. Such sovereignty extends to the air
space over the territorial sea as well as to its bed and subsoil. [32]
In the case of warships,[33] as pointed out by Justice Carpio, they
continue to enjoy sovereign immunity subject to the following
exceptions:
 Article 30
Non-compliance by warships with the laws and regulations
of the coastal State
If any warship does not comply with the laws and regulations of the
coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it,
the coastal State may require it to leave the territorial sea
immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance
by a warship or other government ship operated for non-
commercial purposes with the laws and regulations of the coastal
State concerning passage through the territorial sea or with the
provisions of this Convention or other rules of international law.
Article 32
Immunities of warships and other government ships
operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles
30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial
purposes. (Emphasis supplied.)
A foreign warship’s unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the
above provisions may apply.But what if the offending warship is a
non-party to the UNCLOS, as in this case, the US?
An overwhelming majority – over 80% -- of nation states are now
members of UNCLOS, but despite this the US, the world’s leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted against
and refrained from signing it due to concerns over deep seabed
mining technology transfer provisions contained in Part XI. In a
remarkable, multilateral effort to induce U.S. membership, the bulk
of UNCLOS member states cooperated over the succeeding decade
to revise the objectionable provisions. The revisions satisfied the
Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President
Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent.  Despite
consistent support from President Clinton, each of his successors,
and an ideologically diverse array of stakeholders, the Senate has
since withheld the consent required for the President to
internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses,  its progress
continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions.
Most recently, 111th Congress SFRC Chairman Senator John Kerry
included “voting out” UNCLOS for full Senate  consideration among
his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.[34]
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will “recognize the
rights of the other states in the waters off their coasts, as reflected in
the convention [UNCLOS], so long as the rights and freedom of the
United States and others under international law are recognized by
such coastal states”, and President Clinton’s reiteration of the US
policy “to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage other
countries to do likewise.”  Since Article 31 relates to the “traditional
uses of the oceans,” and “if under its policy, the US ‘recognize[s] the
rights of the other states in the waters off their coasts,’” Justice
Carpio postulates that “there is more reason to expect it to recognize
the rights of other states in their internal waters, such as the Sulu
Sea in this case.”
As to the non-ratification by the US, Justice Carpio emphasizes that
“the US’ refusal to join the UNCLOS was centered on its
disagreement with UNCLOS’ regime of deep seabed mining (Part
XI) which considers the oceans and deep seabed commonly owned
by mankind,” pointing out that such “has nothing to do with its [the
US’] acceptance of customary international rules on navigation.”
It may be mentioned that even the US Navy Judge Advocate
General’s Corps publicly endorses the ratification of the UNCLOS,
as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a maximum
outer limit for territorial seas; codifies innocent passage, transit
passage, and archipelagic sea lanes passage rights; works against
“jurisdictional creep” by preventing coastal nations from expanding
their own maritime zones; and reaffirms sovereign immunity of
warships, auxiliaries and government aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest continental
shelves in the world. Further, it is the Law of the Sea Convention
that first established the concept of a maritime Exclusive Economic
Zone out to 200 nautical miles, and recognized the rights of coastal
states to conserve and manage the natural resources in this Zone. [35]
We fully concur with Justice Carpio’s view that non-membership in
the UNCLOS does not mean that the US will disregard the rights of
the Philippines as a Coastal State over its internal waters and
territorial sea. We thus expect the US to bear “international
responsibility” under Art. 31 in connection with the USS
Guardian grounding which adversely affected the Tubbataha reefs.
Indeed, it is difficult to imagine that our long-time ally and trading
partner, which has been actively supporting the country’s efforts to
preserve our vital marine resources, would shirk from its obligation
to compensate the damage caused by its warship while transiting our
internal waters. Much less can we comprehend a Government
exercising leadership in international affairs, unwilling to comply
with the UNCLOS directive for all nations to cooperate in the global
task to protect and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures consistent with
this Convention, for the protection and preservation of the marine
environment, taking into account characteristic regional features.

In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty upholds the
immunity of warships from the jurisdiction of Coastal States while
navigating the latter’s territorial sea, the flag States shall be required
to leave the territorial sea immediately if they flout the laws and
regulations of the Coastal State, and they will be liable for damages
caused by their warships or any other government vessel operated for
non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found
in the VFA. Likewise, they invoke federal statutes in the US under
which agencies of the US have statutorily waived their immunity to
any action. Even under the common law tort claims, petitioners
asseverate that the US respondents are liable for negligence, trespass
and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines to promote
“common security interests” between the US and the Philippines in
the region. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States
and the Philippine government in the matter of criminal jurisdiction,
movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.[36] The invocation of US federal
tort laws and even common law is thus improper considering that it
is the VFA which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the objectives of
the agreement.
As it is, the waiver of State immunity under the VFA pertains only to
criminal jurisdiction and not to special civil actions such as the
present petition for issuance of a writ of Kalikasan.In fact, it can be
inferred from Section 17, Rule 7 of the Rules that a criminal case
against a person charged with a violation of an environmental law is
to be filed separately:
Sec. 17. Institution of separate actions.—The filing of a petition for
the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
In any case, it is our considered view thata ruling on the application
or non-application of criminal jurisdiction provisions of the VFA to
US personnel who may be found responsible for the grounding of
the USS Guardian, would be premature and beyond the province of a
petition for a writ of Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which have
resulted from the violation of environmental laws. The Rules allows
the recovery of damages, including the collection of administrative
fines under R.A. No. 10067, in a separate civil suit or that deemed
instituted with the criminal action charging the same violation of an
environmental law.[37]
Section 15, Rule 7 enumerates the reliefs which may be granted in a
petition for issuance of a writ of Kalikasan, to wit:
Sec. 15. Judgment.—Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation
of environmental laws resulting in environmental destruction or
damage;
(b) Directing the respondent public official, government agency,
private person or entity to protect, preserve,rehabilitate or restore the
environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;
(d) Directing the respondent public official, government agency, or
private person or entity to make periodic reports on the execution of
the final judgment; and
(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection,preservation,
rehabilitation or restoration of the environment, except the award of
damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this
petition has become moot in the sense that the salvage operation
sought to be enjoined or restrained had already been accomplished
when petitioners sought recourse from this Court. But insofar as the
directives to Philippine respondents to protect and rehabilitate the
coral reef structure and marine habitat adversely affected by the
grounding incident are concerned, petitioners are entitled to these
reliefs notwithstanding the completion of the removal of the USS
Guardianfrom the coral reef.
However, we are mindful of the fact that the US and Philippine
governments both expressed readiness to negotiate and discuss the
matter of compensation for the damage caused by the USS
Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the extent
of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not
proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution methods
are encouraged by the court, to wit:
RULE 3
xxxx
Sec. 3. Referral to mediation.–At the start of the pre-trial conference,
the court shall inquire from the parties if they have settled the
dispute; otherwise, the court shall immediately refer the parties or
their counsel, if authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of mediation. If not
available, the court shall refer the case to the clerk of court or legal
researcher for mediation.
Mediation must be conducted within a non-extendible period of
thirty (30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from
the expiration of the 30-day period.
Sec. 4. Preliminary conference.–If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled date
of continuance, the court may refer the case to the branch clerk of
court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
Sec. 5. Pre-trial conference; consent decree.–The judge shall put the
parties and their counsels under oath, and they shall remain under
oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law,
morals, public order and public policy to protect the right of the
people to a balanced and healthful ecology.
xxxx
Sec. 10. Efforts to settle.–The court shall endeavor to make the
parties to agree to compromise or settle in accordance with law at
any stage of the proceedings before rendition of
judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a
guided-missile cruiser, the USS Port Royal, ran aground about half a
mile off the Honolulu Airport Reef Runway and remained stuck for
four days. After spending $6.5 million restoring the coral reef, the
US government was reported to have paid the State of Hawaii $8.5
million in settlement over coral reef damage caused by the
grounding.[38]
To underscore that the US government is prepared to pay appropriate
compensation for the damage caused by the USS
Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team
which will “initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in Tubbataha,
based on assessments by Philippine-based marine scientists.” The US
team intends to “help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate
Philippine government entities, non-governmental organizations, and
scientific experts from Philippine universities.” [39]
A rehabilitation or restoration program to be implemented at the cost
of the violator is also a major relief that may be obtained under a
judgment rendered in a citizens’ suit under the Rules, viz:
RULE 5
Section 1. Reliefs in a citizen suit.–If warranted, the court may grant
to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of
attorney’s fees, costs of suit and other litigation expenses. It may also
require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by
the violator, or to contribute to a special trust fund for that purpose
subject to the control of the court.
In the light of the foregoing, the Court defers to the Executive
Branch on the matter of compensation and rehabilitation measures
through diplomatic channels.  Resolution of these issues impinges on
our relations with another State in the context of common security
interests under the VFA. It is settled that “[t]he conduct of the
foreign relations of our government is committed by the Constitution
to the executive and legislative—“the political”--departments of the
government, and the propriety of what may be done in the exercise
of this political power is not subject to judicial inquiry or
decision.”[40]
On the other hand, we cannot grant the additional reliefs prayed for
in the petition to order a review of the VFA and to nullify certain
immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
Zamora,[41] the VFA was duly concurred in by the Philippine Senate
and has been recognized as a treaty by the United States as attested
and certified by the duly authorized representative of the United
States government. The VFA being a valid and binding agreement,
the parties are required as a matter of international law to abide by its
terms and provisions.[42]  The present petition under the Rules is not
the proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of the
Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta,
Bersamin, Del Castillo, Perez, Reyes, and Perlas-Bernabe, JJ.,
concur.
Sereno, C.J., see concurring opinion.
Mendoza, J., on official leave.
Leonen, J., see separate concurring opinion.  documents should have been done through diplomatic channels.” (Id.
Jardeleza, J., no part.
 Tubbataha Reefs Natural Park – .
[1]
 Id.
[2]
 “AN ACT ESTABLISHING THE TUBBATAHA REEFS
[3]
NATURAL PARK IN THE PROVINCE OF PALAWAN AS A
PROTECTED AREA UNDER THE NIPAS ACT (R.A. 7586) AND
THE STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR
PALAWAN ACT (R.A. 7611), PROVIDING FOR ITS
MANAGEMENT AND FOR OTHER PURPOSES.”
 Rollo, pp. 194-199.
[4]
 <http: manila.usembassy.gov="" pressphotoreleases2013="" navy-
[5]
commander-expresses-regret-concerning-uss-guardian-
grounding.html="">.
 “Joint Statement Between The Philippines And The United States
[6]
On The USS Guardian Grounding On Tubbataha Reef,” February 5,
2013.Accessed at US Embassy website - .
 Rollo, pp. 89-92.
[7]
 Id. at 156-191. In a letter dated 27 May 2013, the DFA’s Office of
[8]
Legal Affairs informed this Court that it has received from the
Embassy of the United States the Notice sent by this Court, with a
request to return the same. It said that the US Embassy “asserts that
it is not an agent for the service of process upon the individuals
named in court documents, and that the transmission of the Court
at 255.)
 Id. at 215-247.
[9]
 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641
[10]
SCRA 244, 254, citing David v. Macapagal-Arroyo, 522 Phil. 705,
755 (2006).
[11]
 Id., citing Jumamil v. Cafe, 507 Phil. 455, 465 (2005),
citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618,
632-633 (2000).  United States of America v. Ruiz, 221 Phil. 179, 182-183 & 184
[24]

(1985).
 Biraogo v. Philippine Truth Commission of 2010, G.R. Nos.
[12]

192935& 193036, December 7, 2010, 637 SCRA 78, 151,  G.R. No. 90314, November 27, 1990, 191 SCRA 713.
[25]

citing Social Justice Society (SJS) v. Dangerous Drugs Board, et

al., 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department  Id. at 727-728.
[26]

of Energy, 346 Phil. 321 (1997) and De Guia v. COMELEC, G.R.

No. 104712, May 6, 1992, 208 SCRA 420, 422.  24 FSupp. 2d 155, 159 (D.P.R. 1997).
[27]

 G.R. No. 101083, July 30, 1993, 224 SCRA 792.

[13]
 Merlin M. Magallona, A Primer on the Law of the Sea, 1997, p. 1.
[28]

 Id. at 804-805.
[14]
 Bertrand Theodor L. Santos, “Untangling a Tangled Net of
[29]

Confusion: Reconciling the Philippine Fishery Poaching Law and the

 Id. at 802-803.
[15]
UNCLOS” World Bulletin, Vol. 18: 83-116 (July-December 2002),
p. 96.
 See Annotation to the Rules of Procedure for Environmental
[16]

Cases.  Anne Bardin, “Coastal State’s Jurisdiction Over Foreign Vessels”

[30]

14 Pace Int’l. Rev. 27, 28 (2002).

 Air Transportation Office v. Ramos, G.R. No. 159402, February
[17]

23, 2011, 644 SCRA 36, 41.  Id. at 29.

[31]

 261 Phil. 777 (1990).

[18]
 Art. 2, UNCLOS.
[32]

 Id. at 790-792.
[19]
 Art. 29 of UNCLOS defines warship as “a ship belonging to the
[33]

armed forces of a State bearing the external marks distinguishing

 445 Phil. 250 (2003).
[20]
such ships of its nationality, under the command of an officer duly
commissioned by the government of the State and whose name
 Id. at 269-270. Citations omitted.
[21]
appears in the appropriate service list or its equivalent, and manned
by a crew which is under regular armed forces discipline.”
 Id. at 268, citing J.L. Brierly, “The Law of Nations,” Oxford
[22]

University Press, 6th Edition, 1963, p. 244.  Commander Robert C. “Rock” De Tolve, JAGC, USN, “At What
[34]

Cost? America’s UNCLOS Allergy in the Time of ‘Lawfare’”,  61

 Supra note 18, at 788-789 & 797.
[23]
Naval L. Rev. 1, 3 (2012).
 I concur.
 <http://www.jag.navy.mil/organization/code 10 law of the
[35]

sea.htm>. Sovereign immunity serves as a bar for the foreign sovereign to be

subjected to the trial process. Supported both by local jurisprudence,
 See BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
[36]
as as international law (which forms part of the Philippine legal
Zamora, 396 Phil. 623, 652 (2000). structure), the doctrine should not be reversed in this particular case.

 Rule 10, Rules of Procedure for Environmental Cases.

[37]
SOVEREIGN IMMUNITY IN PHILIPPINE LAW

 “USS Port Royal (CG73)” – ;“USS Port Royal Returns to

[38]
Sovereign immunity in Philippine law has been lengthily discussed
Homeport” , Navy Military Home Page, Story Number NNS090211- by the Court in China National Machinery & Equipment Corp. v.
02 Release Date: 2/11/2009 6:00 AM – ; “Navy, state reach Hon. Santamaria in the following manner:
settlement on USS Port Royal damage”, posted Feb. 05, 2011 8:26
AM –. This Court explained the doctrine of sovereign immunity in Holy See
v. Rosario, to wit:
 .
[39]

There are two conflicting concepts of sovereign immunity,

 Vinuya v. Romulo, G.R. No. 162230, April 28, 2010, 619 SCRA
[40]
each widely held and firmly established. According to the
533, 559, citing Oetjen v. Central Leather Co., 246 U.S. 297, 302 classical or absolute theory, a sovereign cannot, without its consent,
(1918). be made a respondent in the courts of another sovereign. According
to the newer or restrictive theory, the immunity of the sovereign is
 Supra note 36.
[41]
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis.
 Nicolas v. Secretary Romulo, et al., 598 Phil. 262, 280 & 285.
[42]

xxxx
The restrictive theory came about because of the entry of sovereign
states into purely commercial activities remotely connected with the
discharge of governmental functions. This is particularly true with 
respect  to  the  Communist  states  which  took  control  of
CONCURRING OPINION nationalized business activities and international trading.

In JUSMAG v. National Labor Relations Commission, this Court

SERENO, CJ: affirmed the Philippines’ adherence to the restrictive theory as
follows:

The doctrine of state immunity from suit has undergone further
metamorphosis. The view evolved that the existence of a contract
does not, per se, mean that sovereign states may, at all times, be sued
in local courts. The complexity of relationships between sovereign
states, brought about by their increasing commercial activities,
mothered a more restrictive application of the doctrine.
xxxx
As it stands now, the application of the doctrine of immunity
from suit has been restricted to sovereign or governmental
activities (jure imperii). The mantle of state immunity cannot be
extended to commercial, private and proprietary acts (jure gestionis).
Since the Philippines adheres to the restrictive theory, it is crucial to
ascertain the legal nature of the act involved – whether the entity
claiming immunity performs governmental, as opposed to
proprietary, functions. As held in United States of America v.
Ruiz –
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. Stated
differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to
be sued only when it enters into business contracts. It does not apply
where the contract relates to the exercise of its sovereign functions.
[1]
 (Emphases supplied. Citations omitted)
From the Philippine perspective, what determines its ability to
impose its law upon the foreign entity would be the act of the foreign
entity – on whether the act is an aspect of its sovereign function or a
private act.
In this case, the two Naval Officers were acting pursuant to their
function as the commanding officers of a warship, traversing
Philippine waters under the authority of the Visiting Forces
Agreement (VFA). While the events beg the question of what the
warship was doing in that area, when it should have been headed
towards Indonesia, its presence in Philippine waters is not wholly
unexplainable. The VFA is a treaty, and it has been affirmed as valid
by this Court in Bayan v. Zamora,[2] and affirmed in Lim v. Executive
Secretary[3] and Nicolas v. Romulo.[4]  It has, in the past, been used to
justify the presence of United States Armed Forces in the
Philippines. In this respect therefore, acts done pursuant to the VFA
take the nature of governmental acts, since both the United States
and Philippine governments recognize the VFA as a treaty with
corresponding obligations, and the presence of these two Naval
Officers and the warship in Philippine waters fell under this legal
regime.
From this, the applicability of sovereign immunity cannot be denied
as to the presence of the warship and its officers in Philippine waters.
This does not, however, put an end to the discussion, because even if
immunity is applicable to their presence, the specific act of hitting
the Tubbataha Reef and causing damage thereto is a presumably
tortuous act. Can these kinds of acts also be covered by the principle
of sovereign immunity?
TORT EXCEPTION
Under the regime of international law, there is an added dimension to
sovereign immunity exceptions: the tort exception. Whether this has
evolved into a customary norm is still debatable; what is important to
emphasize is that while some states have enacted legislation to allow
the piercing of sovereign immunity in tortuous actions, the Foreign
Sovereign Immunities Act of 1976 of the United States (FSIA)
[5]
 contains such privilege. Specifically, the FSIA contains exceptions
for (1) waiver;[6] (2) commercial activity;[7] (3) expropriation;[8] (4)
property rights acquired through succession or donation; [9] (5)
damages for personal injury or death or damage to or loss of
property;[10] (6) enforcement of an arbitration agreement; [11] (7)
torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support to such an act, if the state sponsors
terrorism;[12] and (8) maritime lien in a suit for admiralty based on
commercial activity.[13]
Any claim under the FSIA goes through a hierarchical process
between the diplomatic channels of the United States and the forum
state. However, by explicitly including the tort exception in its local
legislation under the 4th exception discussed above - with due
consideration to the heavy requirements for any doctrine to attain
customary status - it becomes plausible that the exception can be
applied to the United States, if not through customary international
law, then by reason of acquiescence or estoppel.
As explained by Jasper Finke,
x x x x the current state practice may not support a rule of customary
international  law  according  to  which  states  must  deny sovereign
immunity in case of tortious acts committed by another country in
the forum state. Even though such an obligation is included in the
ECSI and the UNCJIS, a considerable number of states do not apply
this exception. But this does not answer the question whether states
are prohibited from doing so. Section 1605 of the FSIA, for example,
denies immunity in cases ‘in which money damages are sought …
for personal injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious act or
omission of that foreign state’. If sovereign immunity is the default
rule and all exceptions must reflect customary international law, and
if the tort exception has not yet evolved into custom, then states such
as the US, UK, Canada, and Australia that have included the tort
exception in their national immunity laws automatically violate
international law – a conclusion which no commentator so far has
suggested. But if states that enact this exception as law do not
violate international law, why then should a state do so if its
courts apply this exception not on the basis of national law, but
on the basis of how they construe and interpret the doctrine of
sovereign immunity under international law?[14] (Emphasis
supplied)
What Finke suggests is that a local court need not find the tort
exception concept in its national law if it can interpret the doctrine
from its understanding of international law. Can the Philippines then
interpret the exception as being part of its acceptance of “general
principles of international law” under the Constitution? [15]
SOVEREIGN IMMUNITY AS A POLITICAL DECISION
In Vinuya v. Romulo, we stated that “the question whether the
Philippine government should espouse claims of its nationals against
a foreign government is a foreign relations matter, the authority for
which is demonstrably committed by our Constitution not to the
courts but to the political branches.”[16] Immunity then, unlike in
other jurisdictions, is determined not by the courts of law but by the
executive branches. Indeed, this was extensively discussed in Chief
Justice Puno’s concurring opinion in Liang v. People, to wit:
Petitioner's argument that a determination by the Department of
Foreign Affairs that he is entitled to diplomatic immunity is a
political question binding on the courts, is anchored on the ruling
enunciated in the case of WHO, et al. vs. Aquino, et al., viz:
“It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the government
as in the case at bar, it is then the duty of the courts to accept the
claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other
officer acting under his direction. Hence, in adherence to the
settled principle that courts may not so exercise their jurisdiction
by seizure and detention of property, as to embarrass the
executive arm of the government in conducting foreign relations,
it is accepted doctrine that in such cases the judicial department
of the government follows the action of the political branch and
will not embarrass the latter by assuming an antagonistic
jurisdiction.”
This ruling was reiterated in the subsequent cases of International
Catholic Migration Commission vs. Calleja; The Holy See vs.
Rosario, Jr; Lasco vs. UN; and DFA vs. NLRC.
The case of WHO vs. Aquino involved the search and seizure of
personal effects of petitioner Leonce Verstuyft, an official of the
WHO. Verstyft was certified to be entitled to diplomatic immunity
pursuant to the Host Agreement executed between the Philippines
and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed
against ICMC and IRRI. As international organizations, ICMC and
IRRI were declared to possess diplomatic immunity. It was held that
they are not subject to local jurisdictions. It was ruled that the
exercise of jurisdiction by the Department of Labor over the case
would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or
control by the host country and to ensure the unhampered
performance of their functions.
In Holy See v. Rosario, Jr. involved an action for annulment of sale
of land against the Holy See, as represented by the Papal Nuncio.
The Court upheld the petitioner’s defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the
civil and administrative jurisdiction of the receiving state over any
real action relating to private immovable property situated in the
territory of the receiving state, which the envoy holds on behalf of
the sending state for the purposes of the mission, with all the more
reason should immunity be recognized as regards the sovereign
itself, which in that case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for
Natural Resources Exploration was sued before the NLRC for illegal
dismissal. The Court again upheld the doctrine of diplomatic
immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against
the Asian Development Bank. Pursuant to its Charter and the
Headquarters Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.
xxxx
Clearly, the most important immunity to an international official, in
the discharge of his international functions, is immunity from local
jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the
jurisdiction of the local authorities for his official acts. Those acts are
not his, but are imputed to the organization, and without waiver the
local courts cannot hold him liable for them. In strict law, it would
seem that even the organization itself could have no right to waive an
official's immunity for his official acts. This permits local authorities
to assume jurisdiction over and individual for an act which is not, in
the wider sense of the term, his act at all. It is the organization itself,
as a juristic person, which should waive its own immunity and
appear in court, not the individual, except insofar as he appears in the
name of the organization. Provisions for immunity from jurisdiction
for official acts appear, aside from the aforementioned treatises, in
the constitution of most modern international organizations. The
acceptance of the principle is sufficiently widespread to be regarded
as declaratory of international law. [17] (Emphasis supplied)
In this view, the prudent interpretation of the tort exception would be
to allow the executive branch to first determine whether diplomatic
or sovereign immunity can be invoked by the foreign officials
involved. If it can be invoked, then the next analysis should be
whether this invoked immunity is absolute, as in the treatment of
diplomatic envoys. If it is not absolute, then and only then can the
Court weave the tort exception into the law of sovereign immunity
and thus attain jurisdiction over the Naval Officers involved. This is
important because the practice has been to afford the foreign entity
absolute immunity, but withdraw the same from its personnel when
they commit private acts.
SOVEREIGN IMMUNITY UNDER INTERNATIONAL LAW
The basic concept of state immunity is that no state may be subjected
to the jurisdiction of another state without its consent. [18] According
to Professor Ian Brownlie, it is “a procedural bar (not a substantive
defence) based on the status and functions of the state or official in
question.”[19]  Furthermore, its applicability depends on the law and
procedural rules of the forum state.[20] In the recent judgment of the
International Court of Justice (ICJ) in the Jurisdictional Immunities
of the State (Germany v. Italy: Greece Intervening) case,[21]the
doctrine of sovereign immunity was applied in the following context:
In 1995, successors in title of the victims of the Distomo massacre,
committed by the German armed forces in a Greek village in June
1944, brought proceedings for compensation against Germany before
the Greek courts. The Greek court ordered Germany to pay
compensation to the claimants. The appeal by Germany against that
judgment was dismissed by a decision of the Hellenic Supreme
Court, which ordered Germany to pay the costs of the appeal
proceedings. The successful Greek claimants under the first-instance
and Supreme Court judgments applied to the Italian courts
for exequatur of those judgments, so as to be able to have them
enforced in Italy. This was allowed by the Florence Court of Appeal
and confirmed by the Italian Court of Cassation.
Germany raised the dispute before the ICJ, claiming these decisions
constituted violations of its jurisdictional immunity.
The ICJ analyzed the case from the vantage point of immunity, such
that the jurisdictional immunity of states refers primarily to an
immunity from the trial process and is thus preliminary in character,
as stated in the following manner:
At the outset, however, the Court must observe that the proposition
that the availability of immunity will be to some extent dependent
upon the gravity of the unlawful act presents a logical
problem. Immunity from jurisdiction is an immunity not merely
from being subjected to an adverse judgment but from being
subjected to the trial process. It is, therefore, necessarily
preliminary in nature. Consequently, a national court is required to
determine whether or not a foreign State is entitled to immunity as a
matter of international law before it can hear the merits of the case
brought before it and before the facts have been established. If
immunity were to be dependent upon the State actually having
committed a serious violation of international human rights law or
the law of armed conflict, then it would become necessary for the
national court to hold an enquiry into the merits in order to determine
whether it had jurisdiction. If, on the other hand, the mere allegation
that the State had committed such wrongful acts were to be sufficient
to deprive the State of its entitlement to immunity, immunity could,
in effect be negated simply by skilful construction of the claim.
[22]
 (Emphasis supplied)
The ICJ continued dissecting national law in order to determine
whether jurisdictional immunity could be defeated by reason of
serious violations of human rights law or the law of armed conflict.
In this, the ICJ clearly saw that there was no customary international
law norm that led to the defeat of immunity by reason of these
violations, including the tort exception, viz:
Apart from the decisions of the Italian courts which are the subject of
the present proceedings, there is almost no State practice which
might be considered to support the proposition that a State is
deprived of its entitlement to immunity in such a case. Although the
Hellenic Supreme Court in the Distomo case adopted a form of that
proposition, the Special Supreme Court in Margellos repudiated that
approach two years later. As the Court has noted in paragraph 76
above, under Greek law it is the stance adopted in Margellos which
must be followed in later cases unless the Greek courts find that
there has been a change in customary international law since 2002,
which they have not done. As with the territorial tort principle,
the Court considers that Greek practice, taken as a whole, tends
to deny that the proposition advanced by Italy has become part
of customary international law.
In addition, there is a substantial body of State practice from
other countries which demonstrates that customary international
law does not treat a State’s entitlement to immunity as
dependent upon the gravity of the act of which it is accused or
the peremptory nature of the rule which it is alleged to have
violated.[23] (Emphasis supplied)
As things stand in the international sphere, the immunity of the state
(and by extension, its agents, in the performance of their
governmental functions jure imperii) must stand against even
serious violations of international law, including breaches of
international environmental law (which is an aspect of human rights
law as well). The ICJ concluded that
x x x[U]nder customary international law as it presently stands, a
State is not deprived of immunity by reason of the fact that it is
accused of serious violations of international human rights law or the
international law of armed conflict. In reaching that conclusion, the
Court must emphasize that it is addressing only the immunity of the
State itself from the jurisdiction of the courts of other States; the
question of whether, and if so to what extent, immunity might apply
in criminal proceedings against an official of the State is not in issue
in the present case.[24]
This does not mean that the act of the state is to be considered
lawful. However, this also does not mean that state immunity is
waived in the context of an international breach of even a jus
cogens norm, as explained in this manner:
The rules of State immunity are procedural in character and are
confined to determining whether or not the courts of one State may
exercise jurisdiction in respect of another State. They do not bear
upon the question whether or not the conduct in respect of which the
proceedings are brought was lawful or unlawful. That is why the
application of the contemporary law of State immunity to
proceedings concerning events which occurred in 1943-1945 does
not infringe the principle that law should not be applied
retrospectively to determine matters of legality and responsibility (as
the Court has explained in paragraph 58 above). For the same reason,
recognizing the immunity of a foreign State in accordance with
customary international law does not amount to recognizing as
lawful a situation created by the breach of a jus cogens rule, or
rendering aid and assistance in maintaining that situation, and so
cannot contravene the principle in Article 41 of the International
Law Commission’s Articles on State Responsibility. [25]
CONCLUSION OF JURISDICTIONAL ARGUMENTS AND
IMMUNITY
What the Court is left to work with is a process by which jurisdiction
and immunity can be determined by answering several questions,
summated thusly:
1. Is the act of the foreign national or entity an act jure imperii,
such that it can be considered an act of state entitled to
immunity, or an act jure gestionis, in which case it is to be
considered a private act?
2. In respect of the above question, has the executive branch, in
the exercise of its political power, determined whether
absolute diplomatic immunity is applicable?
3. If it is an act jure imperii and thus entitled to sovereign
immunity, does an exception apply to withdraw the
immunity privilege of such acts?
In this case, it is apparent that the act of the U.S.S. Guardian and its
officers in entering Philippine waters is allowed by the VFA, and as
a treaty privilege should be considered an actjure imperii. Its
deviation into the waters of Tubbataha, and whether this can be
considered a private act, is a factual issue that should be determined
by the proper body. Indeed, while Philippine authorities may not
have authorized the deviation, if the United States government
affirms that it gave the Guardian sufficient discretion to determine
its course, then the act is not necessarily robbed of its jure
imperii character and is thus entitled to immunity. The course of
action of the Philippine government would be to engage in
diplomatic negotiations for potential treaty breach liability.
As of this moment, the executive branch has not made a
determination of the applicable immunity. No correspondence has
been sent to the Court as to the issue. Thus, the Court must act in
deference to the executive prerogative to first make this
determination under the presumption of regularity of performance of
duties, before it can exercise its judicial power.
Finally, no exception  exists in Philippine  or international law that
would remove the immunity of the United States in order to place it
under the jurisdiction of Philippine courts. The Writ of Kalikasan is
a compulsory writ, and its issuance initiates a legal process that
would circumvent the internationally  established  rules of immunity.
Should the Court issue the Writ, it could possibly entail international
responsibility for breaching the jurisdictional immunity of a
sovereign state.
I therefore vote to dismiss the Petition.
 G.R. No. 185572, February 07, 2012
[1]
 G.R. No. 138570, October 10, 2000.
[2]
 G.R. No. 151445, April 11, 2002.
[3]
  JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF
[19]

 G.R. No. 175888, February 11, 2009.

[4]
PUBLIC INTERNATIONAL LAW, 8th Ed., 487 (2012).

 Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 1330, 1332(a),

[5]
 Id. at 488.
[20]

1391(f) and 1601-1611.

 JURISDICTIONAL IMMUNITIES OF THE STATE (Germany
[21]

 Id., sec. 1605(a)(1).

[6]
v. Italy), Judgment (Feb 3, 2012).

 Id., sec. 1605(a)(2).

[7]
 Id. at 82.
[22]

 Id., sec. 1605(a)(3).

[8]
 Id. at 83-84.
[23]

 Id., sec. 1605(a)(4).

[9]

[10]
 Id., sec. 1605(a)(5).

[11]
 Id., sec. 1605(a)(6).
CONCURRING OPINION
[12]
 Id., sec. 1605(a)(7).

[13]
 Id., sec. 1605(b). LEONEN, J.:

 JASPER FINKE, SOVEREIGN IMMUNITY: RULE, COMITY

[14]
Prefatory
OR SOMETHING ELSE?, Eur J Int Law (2010) 21(4), 863-864.
I agree that the petition should be dismissed primarily because it is
[15]
 Article II, Sec. 2, 1987 CONSTITUTION.
moot and academic.
[16]
 G.R. No. 162230, April 28, 2010.
The parties who brought this petition have no legal standing.  They
also invoke the wrong remedy.  In my view, it is time to clearly
[17]
 G.R. No. 125865, 26 March 2001.
unpack the rudiments of our extraordinary procedures in
environmental cases in order to avoid their abuse.  Abuse of our
 J-MAURICE ARBOUR & GENEVIEVE PARENTS, DROIT
[18]
procedures contributes to the debasement of the proper function of
INTERNATIONAL PUBLIC, 5th Ed., 331 (2006).
the remedies and invites inordinate interference from this court from
what may be technical and political decisions that must be made in a
different forum.  Our sympathy for environmental concerns never
justifies our conversion to an environmental super body.
The writ of kalikasan is not an all-embracing legal remedy to be
wielded like a political tool.  It is both an extraordinary and equitable
remedy which assists to prevent environmental catastrophes.  It does
not replace other legal remedies similarly motivated by concern for
the environment and the community’s ecological welfare.  Certainly,
when the petition itself alleges that remedial and preventive remedies
have occurred, the functions of the writ cease to exist.  In case of
disagreement, parties need to exhaust the political and administrative
arena.  Only when a concrete cause of action arises out of facts that
can be proven with substantial evidence may the proper legal action
be entertained.
Citizen’s suits are suits brought by parties suffering direct and
substantial injuries; although in the environmental field, these
injuries may be shared with others.  It is different from class suits
brought as representative suits under Oposa v. Factoran.[1]  In my
view, there is need to review this doctrine insofar as it allows a
nonrepresentative group to universally represent a whole population
as well as an unborn generation binding them to causes of actions,
arguments, and reliefs which they did not choose.  Generations yet
unborn suffer from the legal inability to assert against false or
unwanted representation.
Citizen’s suits are procedural devices that allow a genuine cause of
action to be judicially considered in spite of the social costs or
negative externalities of such initiatives.  This should be clearly
distinguished in our rules and in jurisprudence from class suits that
purport to represent the whole population and unborn generations. 
The former is in keeping with the required constitutional protection
for our people.  The latter is dangerous and should be used only in
very extraordinary or rare situations.  It may be jurisprudentially
inappropriate.
In my view, decisions relating to environmental concerns should be
more balanced.  It must attend in a more sober way to the required
balance of all interests.  Hence, our rule with respect to standing
should require that parties bringing the suit are sufficiently and
substantially possessed of individual interest and capability so that
they can properly shape the issues brought before this court.  The
capability of the parties to bring suit can readily be seen through the
allegations made in their petition.
Our doctrine regarding sovereign immunity also needs to be refined
in the proper case with respect to its nature, source, and its
limitations.
The doctrine of sovereign immunity evolves out of the theory and
practice of sovereignty and the principle par in parem non habet
jurisdictionem.  Its particular contours as an international norm have
evolved far beyond the form it took when the theory of absolute
sovereignty was current.  Contemporarily, it is understood as a basic
right extended to states by other states on the basis of respect for
sovereignty and independence.[2]  There appears to be a consensus
among states that sovereign immunity as a concept is legally binding.
[3]
  However, there remains to be a lack of international agreement as
to how it is to be invoked and the extent of immunity in some cases.
[4]
This vagueness arises from the debate on which among the sources
of international law the doctrine of sovereign immunity draws its
binding authority and the content of the doctrine given its source.
This doctrine of relative jurisdictional immunity (sovereign
immunity) of states and their agents becomes binding in our
jurisdiction as international law only through Section 2 of Article II
or Section 21 of Article VII of the Constitution.  Article XVII,
Section 3 of the Constitution is a limitation on suits against our state.
It is not the textual anchor for determining the extent of jurisdictional
immunities that should be accorded to other states or their agents.  Environmental Cases. Petitioners seek an immediate order from this
International law may have evolved further than the usual distinction
between acta jure imperii and acta jure gestionis.  Indications of
state practice even of public respondents show that jurisdictional
immunity for foreign states may not apply to certain violations of jus
cogens rules of international customary law.  There can be tort
exemptions provided by statute and, therefore, the state practice of
an agent’s sovereign being sued in our courts.
International law does not also prohibit legislation that clarifies
national policy and, therefore, our own considerations of state
practice in relation to the limits of jurisdictional immunities for other
sovereigns.  Neither does international law prohibit domestic courts
from shaping exceptions to jurisdictional immunity based upon our
reading of the Constitution as well as international and municipal
law.
I am of the view, therefore, that this case be dismissed principally for
its procedural infirmities.  We should reserve doctrinal exposition
and declaration of the content of jurisdictional immunities for other
sovereigns and their agents when the proper cases merit our attention
and not yet unduly limit such jurisprudence in relation to the law of
the sea, municipal torts, and violations of international customary
law of a jus cogens character.  The results in this case would have
been different if initiated with the proper remedy, by the proper
parties in the proper court.
I
Procedural antecedents
This court was asked to issue a writ of kalikasan with temporary
environmental protection order or TEPO pursuant to Rule 7 of A.M.
No. 09-6-8-SC, otherwise known as the Rules of Procedure for
court:
1) for respondents to cease and desist all operations over the
Guardian grounding incident;
2) for the demarcation of the metes and bounds of the damaged area,
with an additional buffer zone;
3) for respondents to stop all port calls and war games under the
Balikatan;
4) for respondents to assume responsibility for prior and future
environmental damage in general and under the Visiting Forces
Agreement (VFA);
5) for the temporary definition of allowable activities near or around
the Tubbataha Reefs [Natural] Park, but away from the damaged site
and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to negotiate with the
United States representatives for an agreement on environmental
guidelines and accountability pursuant to the VFA;
7) for respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers
and individuals;
8) for the declaration of exclusive criminal jurisdiction of Philippine
authorities over erring USS Guardian personnel;
9) for respondents to pay just and reasonable compensation in the
settlement of all meritorious claims for damages caused to the
Tubbataha Reefs;
10) for respondents to cooperate in securing the attendance of
witnesses and the collection and production of evidence, including
objects connected with the offenses related to the grounding of the
Guardian;
11) for respondents US officials and their representatives to place a
deposit to the TRNP Trust Fund, as defined in Section 17 of RA
10067, as a bona fide gesture towards full reparations;
12) for respondents to undertake rehabilitation measures for areas
affected by the grounding of the Guardian;
13) for respondents to publish on a quarterly basis the environmental
damage assessment, valuation, and valuation methods, in all stages
of negotiations to ensure transparency and accountability;
14) for the convention of a multisectoral technical working group
that will provide scientific and technical support to the Tubbataha
Protected Area Management Board (TPAMB);
15) for respondents Department of Foreign Affairs, Department of
National Defense, and the Department of Environmental and Natural
Resources to review the VFA and the Mutual Defense Treaty in light
of the right to a balanced and healthful ecology, and any violation
related thereto;
16) for the declaration of the grant of immunity under Articles V and
VI of the VFA as being violative of equal protection and/or the
peremptory norm of nondiscrimination;
17) for permission to resort to continuing discovery measures; and
18) for other just and equitable environmental rehabilitation
measures and reliefs.[5]
Petitioners include representatives from people’s organizations, non-
government organizations, accredited public interest groups,
environmental institutes, government officials, and academicians. [6] 
Respondents, on the other hand, are the American commanding
officers of the USS Guardian and the Balikatan 2013 Exercises,
incumbent Philippine government officials, and Philippine military
officers involved, by virtue of their office, in issues arising out of the
grounding of the USS Guardian in Tubbataha Reefs and its
subsequent salvage.[7]
The USS Guardian is a fifth Avenger Class Mine Countermeasures,
United States Navy ship.[8]  The three diplomatic notes issued by the
Embassy of the United States of America in the Philippines dated
December 3, 2012,[9] December 31, 2012,[10] and January 14,
2013[11] all sought clearance for the ship to “enter and exit the
territorial waters of the Philippines and to arrive at the port of Subic
Bay for the purpose of routine ship replenishment, maintenance, and
crew liberty.”[12]
Thus, on January 17, 2013, while en route to Makasaar, Indonesia,
the USS Guardian ran aground in the Tubbataha Reefs’ south atoll,
approximately 80 miles east-southeast of Palawan. [13]  In a statement
issued on January 25, 2013, US Ambassador to the Philippines Harry
K. Thomas expressed his regret over the incident, recognizing the
legitimate concerns over the damage caused to the reef. [14]  On
February 5, 2013, a joint statement was issued by the Philippines and
the United States where the latter undertook to provide
compensation.[15]  On the same day, a salvage plan was submitted by
a Singaporean company contracted by the US Navy to conduct
the USS Guardian salvage operations.[16]  The salvage operations
were completed on March 30, 2013.[17]
On April 17, 2013, petitioners filed the present petition for writ of
kalikasan with prayer for temporary environmental protection order
(TEPO).
Acting on petitioners’ petition but without necessarily giving due
course, this court on May 8, 2013 issued a resolution.  The resolution
a) required respondents, except the President of the Republic of the
Philippines, to comment within ten (10) days from notice of the
resolution; and b) held in abeyance the issuance of a TEPO. [18]
We note that on May 27, 2013, the Office of Legal Affairs of the
Department of Foreign Affairs sent a letter to this court, requesting
that the notice of this court’s resolution dated May 8, 2013 be
returned, as it was not an agent for the service of processes upon
American respondents.[19]
The pleadings presented the following issues: a) whether petitioners
have legal standing to file a petition for writ of kalikasan with prayer
for temporary environmental protection order (TEPO), and b)
whether the doctrine of sovereign immunity applies to foreign
respondents.
Petitioners argued that they have locus standi.[20]  Having categorized
the petition as a citizen's suit, they alleged that they are representing
“others, including minors and generations yet unborn” in asserting
their constitutional right to a balanced and healthful ecology. [21]  individuals under like circumstances [but only] if the laws of the
Petitioners cited this court’s ruling in Oposa v. Factoran that Article
II, Section 16 of the 1987 Constitution was immediately
enforceable.  The pronouncement was anchored on the premise that
the right to a balanced and healthful ecology belonged “to a different
category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation.”[22]
Petitioners also alleged that the American respondents are not
immune from suit.[23]  Citing Nicolas v. Romulo,[24] they argued that
Article V of the Visiting Forces Agreement or VFA, which pertained
to “Criminal Jurisdiction,”[25] establishes a waiver of the US military
officers involved in the incident's[26] immunity from suit in light of
their violation of Republic Act 10067, or the Tubbataha Reefs
Natural Park (TRNP) Act of 2009,[27] including its entry in the area
without proper permit.[28]  Also citing US cases New York v. United
States Army Corps of Engineers (E.D.N.Y. September 24,
2012) and Trudeau v. FTC (456 F.3d 178, D.C. Cir. 2006),
petitioners further argued that existing US federal statutes clearly
provide that American government agencies have statutorily waived
their immunity from any equitable action involving environmental
damages.[29]  They referred to both Resource Conservation and
Recovery Act of 1976 (RCRA) and the Federal Tort Claims Act
(FTCA) as legal bases.[30]
Petitioners stated that RCRA waives sovereign immunity in citizen’s
suits when a) there is a need to enforce a permit, standard, or
regulation; b) there is a need to abate an imminent and substantial
danger to health or the environment; or c) the United States
Environmental Protection Agency is required to perform a
nondiscretionary duty.[31]
On the other hand, the FTCA provides that “the U.S. Government is
liable in tort in the same manner and to the same extent as private
state in which the wrongful act occurred provide recovery in similar
situations involving private parties.”[32]
Petitioners also argued that the USS Guardian is liable in rem[33] to
the Philippines for response costs and damages resulting from the
destruction, loss, and injury caused to the Tubbataha Reefs. [34]  Aside
from not having had prior permit to enter the area, petitioners
pointed out that the American respondents had committed gross and
inexcusable negligence when it failed to utilize its technical expertise
and equipment in preventing the incident.[35]  It is their position that
this necessarily rendered sovereign immunity inapplicable to
American respondents, even if they were acting within the scope of
their authority, office, or employment.[36]
II
The parties do not have legal standing
Petitioners brought this case as a citizen’s suit under the Tubbataha
Reefs Natural Park Act of 2009, in conjunction with the Rules of
Procedure for Environmental Cases.[37]
Section 37 of the Tubbataha Reefs Natural Park Act of 2009 allows
any citizen to file a civil, criminal, or administrative case against:
(a) Any person who violates or fails to comply with the provisions of
this Act its implementing rules and regulations; or
(b) Those mandated to implement and enforce the provisions of this
Act with respect to orders, rules and regulations issued inconsistent
with this Act; and/or
(c) Any public officer who wilfully or grossly neglects the
performance of an act, specifically enjoined as a duty by this Act or
its implementing rules and regulations; or abuses his authority in the
performance of his duty; or, in any manner improperly performs his
duties under this act or its implementing rules and regulations:
Provided, however, That, no suit can be filed until after a thirty (30)-
day notice has been given to the public officer and the alleged
violator concerned and no appropriate action has been taken thereon.
The court shall exempt such action from the payment of filing fees,
upon prima facie showing of the non-enforcement or violations
complained of and exempt the plaintiff from the filing of an
injunction bond for the issuance of preliminary injunction. In the
event that the citizen should prevail, the court shall award reasonable
attorney's fees, moral damages and litigation costs as appropriate.
While the Tubbataha Reefs Natural Park Act enumerates causes of
action available against duty-bearers, it does not specifically describe
the parties who may file a case.
The “environmental” nature of this petition, based upon the alleged
violation of the Tubbataha Reefs Natural Park Act, by itself does not
and should not automatically render the Rules of Procedure for
Environmental Cases applicable.  At best, it must be reconciled with
rules on parties as contained in the Rules of Court.  This is to
preclude a situation where the interpretation of the Rules of
Procedure for Environmental Cases results in a ruling inconsistent or
contrary to established legal concepts.  It is my position that unless
the remedy sought will serve the purpose of preventing an
environmental catastrophe, the traditional procedural route should be
taken.  This means that even in environmental cases, Rule 3, Section
2, 3, or 12 of the 1997 Rules of Civil Procedure should still also
apply.
Real party in interest
Rule 3, Section 2 pertains to real party in interest:
SEC. 2. Parties in interest.— A real party in interest is the party
who stands to be benefited or injured by the judgment in the suit, or
the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest. (2a) [38]
A real party in interest is a litigant whose right or interest stands to
benefit or get injured by the judgment of the case. [39]  The interest
referred to must be material interest, founded upon a legal right
sought to be enforced.[40]  They bring a suit because the act or
omission of another has caused them to directly suffer its
consequences.[41]  Simply put, a real party in interest has a cause of
action based upon an existing legal right-duty correlative.
Representatives as parties
Section 3 of Rule 3, on the other hand, discusses parties acting in
representation of the real party in interest:
SEC. 3. Representatives as parties. — Where the action is allowed
to be prosecuted or defended by a representative or someone acting
in a fiduciary capacity, the beneficiary shall be included in the title of
the case and shall be deemed to be the real party in interest. A
representative may be a trustee of an express trust, a guardian, an
executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the
principal except when the contract involves things belonging to the
principal.(3a)[42]
A “representative” is not the party who will actually benefit or suffer
from the judgment of the case.  The rule requires that the beneficiary
be identified as he or she is deemed the real party in interest. [43]  This
means that acting in a representative capacity does not turn into a
real party in interest someone who is otherwise an outsider to the
cause of action.
This rule enumerates who may act as representatives, including those
acting in a fiduciary capacity.  While not an exhaustive list, it does
set a limit by allowing only those who are “authorized by law or
these Rules.”[44]  In environmental cases, this section may be used to
bring a suit, provided that two elements concur: a) the suit is brought
on behalf of an identified party whose right has been violated,
resulting in some form of damage, and b) the representative
authorized by law or the Rules of Court to represent the victim.
The citizen’s suit under the Rules of Procedure for Environmental
Cases is a representative suit.  A citizen’s suit is defined:
SEC. 5. Citizen suit. – Any Filipino citizen in representation of
others, including minors or generations yet unborn, may file an
action to enforce rights or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order which
shall contain a brief description of the cause of action and the reliefs
prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof.
The plaintiff may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected barangays copies
of said order.
In my view, this rule needs to be reviewed.  A citizen’s suit that
seeks to enforce environmental rights and obligations may be
brought by any Filipino who is acting as a representative of others,
including minors or generations yet unborn.[45]  As representatives, it
is not necessary for petitioners to establish that they directly suffered
from the grounding of the USS Guardian and the subsequent salvage
operations.  However, it is imperative for them to indicate with
certainty the injured parties on whose behalf they bring the suit. 
Furthermore, the interest of those they represent must be based upon
concrete legal rights.  It is not sufficient to draw out a perceived
interest from a general, nebulous idea of a potential “injury.”

This is particularly important when the parties sought to be
represented are “minors and generations yet unborn.”
“Minors and generations yet unborn” is a category of real party in
interest that was first established in Oposa v. Factoran.  In Oposa v.
Factoran, this court ruled that the representatives derived their
personality to file a suit on behalf of succeeding generations from
"intergenerational responsibility."[46]  The case mirrored through
jurisprudence the general moral duty of the present generation to
ensure the full enjoyment of a balanced and healthful ecology by the
succeeding generations.[47]
Since environmental cases necessarily involve the balancing of
different types and degrees of interests, allowing anyone from the
present generation to represent others who are yet unborn poses three
possible dangers.
First, they run the risk of foreclosing arguments of others who are
unable to take part in the suit, putting into question its
representativeness.  Second, varying interests may potentially result
in arguments that are bordering on political issues, the resolutions of
which do not fall upon this court.  Third, automatically allowing a
class or citizen's suit on behalf of "minors and generations yet
unborn" may result in the oversimplification of what may be a
complex issue, especially in light of the impossibility of determining
future generation’s true interests on the matter.
Decisions of this court will bind future generations.  The unbridled
and misguided use of this remedy by supposed representatives may
not only weaken the minors’ and unborn’s ability to decide for
themselves but may have unforeseen and unintended detrimental
effects on their interests.
The last point is especially crucial in light of res judicata.  A long-
established doctrine on litigation, res judicata:
. . . is an old axiom of law, dictated by wisdom and sanctified by age,
and founded on the broad principle that it is to the interest of the
public that there should be an end to litigation by the same parties
over a subject once fully and fairly adjudicated. It has been
appropriately said that the doctrine is a rule pervading every well-
regulated system of jurisprudence, and is put upon two grounds
embodied in various maxims of the common law: one, public
policy and necessity, which makes it to the interest of the State that
there should be an end to litigation – interest reipublicae ut sit finis
litium; the other, the hardship on the individual that he should be
vexed twice for one and the same cause – nemo debet bis vexari
pro una et eadem causa. A contrary doctrine would subject the
public peace and quiet to the will and neglect of individuals and
prefer the gratification of the litigious disposition on the part of
suitors to the preservation of the public tranquillity and happiness.
[48]
 (Emphasis supplied, citation omitted)
The elements of res judicata are:
. . . (1) the former judgment must be final; (2) the former judgment
must have been rendered by a court having jurisdiction of the
subject matter and the parties; (3) the former judgment must be a
judgment on the merits; and (4) there must be between the first and
subsequent actions (i) identity of parties or at least such as
representing the same interest in both actions; (ii) identity of subject
matter, or of the rights asserted and relief prayed for, the relief being
founded on the same facts; and, (iii) identity of causes of action in
both actions such that any judgment that may be rendered in the
other action will, regardless of which party is successful, amount to
res judicata in the action under consideration. [49] (Emphasis supplied,
citation omitted)

An absolute identity of the parties is not required for res judicata to
apply, for as long as there exists an identity or community of interest.
[50]
Res judicata renders conclusive between the parties and their privies
a ruling on their rights, not just for the present action, but in all
subsequent suits.  This pertains to all points and matters judicially
tried by a competent court.  The doctrine bars parties to litigate an
issue more than once, and this is strictly applied because “the
maintenance of public order, the repose of society . . . require that
what has been definitely determined by competent tribunals shall be
accepted as irrefragable legal truth.” [51]
Considering the effect of res judicata, the ruling in Oposa v.
Factoran has opened a dangerous practice of binding parties who are
yet incapable of making choices for themselves, either due to
minority or the sheer fact that they do not yet exist.  Once res
judicata sets in, the impleaded minors and generations yet unborn
will be unable to bring a suit to relitigate their interest.
Perhaps it is time to revisit the ruling in Oposa v. Factoran.
That case was significant in that, at that time, there was need to call
attention to environmental concerns in light of emerging
international legal principles.  While “intergenerational
responsibility” is a noble principle, it should not be used to obtain
judgments that would preclude future generations from making their
own assessment based on their actual concerns.  The present
generation must restrain itself from assuming that it can speak best
for those who will exist at a different time, under a different set of
circumstances.  In essence, the unbridled resort to representative
suit will inevitably result in preventing future generations from
protecting their own rights and pursuing their own interests and
decisions.  It reduces the autonomy of our children and our
children’s children. Even before they are born, we again restricted
their ability to make their own arguments.
It is my opinion that, at best, the use of the Oposa doctrine in
environmental cases should be allowed only when a) there is a clear
legal basis for the representative suit; b) there are actual concerns
based squarely upon an existing legal right; c) there is no possibility
of any countervailing interests existing within the population
represented or those that are yet to be born; and d) there is an
absolute necessity for such standing because there is a threat of
catastrophe so imminent that an immediate protective measure is
necessary.  Better still, in the light of its costs and risks, we abandon
the precedent all together.
Class suit
The same concern regarding res judicata also applies to a class suit.
Rule 3, Section 12 of the Rules of Court states:
SEC. 12. Class suit. — When the subject matter of the controversy
is one of common or general interest to many persons so numerous
that it is impracticable to join all as parties, a number of them which
the court finds to be sufficiently numerous and representative as to
fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to
protect his individual interest. (12a)
In Mathay et al. v. The Consolidated Bank and Trust Company,
[52]
 this court held that a class suit must essentially contain the
following elements:
The necessary elements for the maintenance of a class suit are
accordingly (1) that the subject matter of the controversy be one of
common or general interest to many persons, and (2) that such
persons be so numerous as to make it impracticable to bring them
all to the court. An action does not become a class suit merely
because it is designated as such in the pleadings.Whether the suit is
or is not a class suit depends upon the attending facts, and the
complaint, or other pleading initiating the class action should allege
the existence of the necessary facts, to wit, the existence of a subject
matter of common interest, and the existence of a class and the
number of persons in the alleged class, in order that the court
might be enabled to determine whether the members of the class
are so numerous as to make it impracticable to bring them all
before the court, to contrast the number appearing on the record
with the number in the class and to determine whether claimants
on record adequately represent the class and the subject matter of
general or common interest.
The complaint in the instant case explicitly declared that the
plaintiffs-appellants instituted the "present class suit under Section
12, Rule 3, of the Rules of Court in behalf of CMI subscribing
stockholders" but did not state the number of said CMI subscribing
stockholders so that the trial court could not infer, much less make
sure as explicitly required by the statutory provision, that the parties
actually before it were sufficiently numerous and representative in
order that all interests concerned might be fully protected, and that
it was impracticable to bring such a large number of parties before
the court.
The statute also requires, as a prerequisite to a class suit, that the
subject-matter of the controversy be of common or general interest to
numerous persons. Although it has been remarked that the
"innocent 'common or general interest' requirement is not very
helpful in determining whether or not the suit is proper," the
decided cases in our jurisdiction have more incisively certified the
matter when there is such common or general interest in the
subject matter of the controversy. By the phrase "subject matter of
the action" is meant "the physical facts, the things real or
personal, the money, lands, chattels, and the like, in relation to
which the suit is prosecuted, and not the delict or wrong committed
by the defendant."[53] (Emphasis supplied, citations omitted)
The same case referred to the United States Federal Rules of Civil
Procedure.  After having been raised by Mathay et al. as legal basis
for its class suit, this court held:
. . . We have no conflict with the authorities cited; those were rulings
under the Federal Rules of Civil Procedure, pursuant to Rule 23 of
which, there were three types of class suits,namely: the true, the
hybrid, and the spurious, and these three had only one feature in
common, that is, in each the persons constituting the class must be
so numerous as to make it impracticable to bring them all before
the court. The authorities cited by plaintiffs-appellants refer to the
spurious class action Rule 23 (a) (3) which involves a right sought to
be enforced, which is several, and there is a common question of law
or fact affecting the several rights and a common relief is sought.
The spurious class action is merely a permissive joinder device;
between the members of the class there is no jural relationship, and
the right or liability of each is distinct, the class being formed solely
by the presence of a common question of law or fact. This
permissive joinder is provided in Section 6 of Rule 3, of our Rules of
Court. Such joinder is not and cannot be regarded as a class suit,
which this action purported and was intended to be as per averment
of the complaint.
It may be granted that the claims of all the appellants involved
the same question of law. But this alone, as said above, did not
constitute the common interest over the subject matter
indispensable in a class suit. . . .[54] (Emphasis supplied, citations
omitted)
In a class suit, petitioners necessarily bring the suit in two capacities:
first, as persons directly injured by the act or omission complained
of; and second, as representatives of an entire class who have
suffered the same injury.  In order to fully protect all those
concerned, petitioners must show that they belong in the same
universe as those they seek to represent.  More importantly, they
must establish that, in that universe, they can intervene on behalf of
the rest.
These requirements equally apply in environmental cases.
Petitioners who bring the suit both for themselves and those they
seek to represent must share a common legal interest — that is, the
subject of the suit over which there exists a cause of action is
common to all persons who belong to the group.[55]  As a result, the
right sought to be enforced is enjoyed collectively, and not separately
or individually.[56]  The substantial injury must have been suffered by
both the parties bringing the suit and the represented class.
However, it is recognized that any damage to the environment affects
people differently, rendering it impossible for the injury suffered to
be of the same nature and degree for each and every person.  For
instance, second-hand smoke from one who lights up a cigarette may
cause lung and other health complications of a much graver degree to
exposed commuters, compared to those who are kept insulated by
well-maintained and well-ventilated buildings.  The same may be
said for dumpsites along the shores of a bay.  The gravity of injury
they cause to those whose source of livelihood is purely fishing in
the affected area would be entirely different from that suffered by an
office worker.
The differences in effects, ranging from miniscule to grave, increase
the possibility of “free-riders” in a case.  This results in a negative
externality: an environmental management concept that delves into
the effect of an individual’s or firm’s action on others. [57]  In this
case, the effect on others is a disadvantage or an injury.
In most instances where this free-rider or negative externality exists,
a suit is not filed because the cost of maintaining and litigating
outweighs the actual damage suffered due to the act or omission of
another.  The theory is that bringing a class suit allows those who are
not as affected as petitioners, though they may share the same
interest, to latch their claim on someone else without any personal
expense.  There must be some assurances, however, that the interests
are the same and the arguments that should have been brought by
others who do not have the resources to bring the suit are properly
represented.  This is why the rules allow courts to be liberal in
assessing “common interest.”
Another essential element of a class suit is that petitioners must be
sufficiently numerous and representative so as to fully protect the
interest of all concerned.  One of the dangers of bringing a class suit
is that while the parties’ environmental interest shares a common
legal basis, the extent and nature of that interest differ depending on
circumstances.
In the case of Re: Request of the Plaintiffs, Heirs of the Passengers
of the Doña Paz,[58] which quoted Moore’s Federal Practice we
noted:
A "true class action" — distinguished from the so-called hybrid
and the spurious class action in U.S. Federal Practice — “involves
principles of compulsory joinder, since . . . (were it not) for the
numerosity of the class members all should . . . (be) before the court.
Included within the true class suit . . . (are) the shareholders'
derivative suit and a class action by or against an unincorporated
association. . . . A judgment in a class suit, whether favorable or
unfavorable to the class, is binding under res judicata principles
upon all the members of the class, whether or not they were before
the court. It is the non-divisible nature of the right sued on which
determines both the membership of the class and the res judicata
effect of the final determination of the right.”[59] (Emphasis
supplied)
Those who bring class suits do so, carrying a heavy burden of
representation.  All the parties represented may not have consented
to the agency imposed on them.
Courts, therefore, must ensure that the parties that bring the suit are
sufficiently numerous to ensure that all possible interests and
arguments have been considered.  The community, class, group, or
identity that is represented must be sufficiently defined so that the
court will be able to properly assess that the parties bringing the suit
are properly representative.
In view of the technical nature of some environmental cases, not
only should the parties be representative in terms of the interests and
arguments that they bring, they must likewise show that they have
the capability to bring reasonably cogent, rational, scientific, well-
founded arguments.  This is so because if they purportedly represent
a community, class, group, or identity, we should assume that all
those represented would have wanted to argue in the best possible
manner.
The cogency and representativeness of the arguments can readily be
seen in the initiatory pleading.  In the special civil actions invoked in
this case, this court has the discretion to scrutinize the initiatory
pleading to determine whether it should grant due course prior or
after the filing of a comment.  In my view, this pleading falls short of
the requirement of representativeness.
For instance, it is clear in some of the reliefs that were requested that
the arguments may not be what all those they purport to represent
really want.  As an illustration, the petition requests:
3) for respondents to stop all port calls and war games under the
Balikatan;
The facts in this case and the writ of kalikasan certainly have no
bearing on why this court should issue an injunction against all port
calls in any part of the country made by all kinds of ships even if this
is related to the Balikatan exercises.  “War games” even undertaken
solely on land has no bearing on the subject matter of this case. 
Also, in the facts as alleged in the pleading, it is not clear how all
those affected by the ecological mishap that may have occurred in
the Tubbataha Reefs would also be interested in stopping “war
games under the Balikatan.”  The pleading asserts that it represents
all generations yet unborn.  Thus, it includes the sons and daughters
of all government officials who are now involved in the Balikatan
exercises.  It also includes the military commanders who are now
administering such exercise.  The broad relief requested belies the
representativeness of the suit.
Of similar nature are the following prayers for relief in the petition:
4) for respondents to assume responsibility for prior and future
environmental damage in general and under the Visiting Forces
Agreement (VFA);
5) for the temporary definition of allowable activities near or around
the Tubbataha Reefs [Natural] Park, but away from the damaged site
and the additional buffer zone;
6) for respondent Secretary of Foreign Affairs to negotiate with the
United States representatives for an agreement on environmental
guidelines and accountability pursuant to the VFA;
....
8) for the declaration of exclusive criminal jurisdiction of Philippine
authorities over erring USS Guardian personnel;
....
14) for the convention of a multisectoral technical working group
that will provide scientific and technical support to the Tubbataha
Protected Area Management Board (TPAMBl);
15) for respondents Department of Foreign Affairs, Department of
National Defense, and the Department of Environmental and Natural
Resources to review the VFA and the Mutual Defense Treaty in light
of the right to a balanced and healthful ecology, and any violation
related thereto;
16) for the declaration of the grant of immunity under Articles V and
VI of the VFA as being violative of equal protection and/or the
peremptory norm of nondiscrimination;
17) for permission to resort to continuing discovery measures
Not all environmental cases need to be brought as class suits.  There
is no procedural requirement that majority of those affected must file
a suit in order that an injunctive writ or a writ of kalikasan can be
issued.  It is sufficient that the party has suffered its own direct and
substantial interest, its legal basis is cogent, and it has the capability
to move forward to present the facts and, if necessary, the scientific
basis for its analysis for some of these cases to be given due course.
Parenthetically, the humility of bringing suits only in the name of
petitioners will protect them from the charge that more than the legal
arguments they want to bring, they also want to impose their own
political views as views which are universally accepted.
In all environmental cases, it is also not necessary that generations
yet unborn be represented.  It is not also necessary that minors bring
the suit. In my view, pleading their interests have no value added to
the case except for its emotive effect at the risk of encouraging a
paternal attitude toward our children and for those belonging to
generations yet unborn.  Certainly, it was not necessary with respect
to the putative cause of action relating to the grounding of the USS
Guardian.
With the class suit improperly brought, the parties who filed this
petition have no legal standing.  To protect the individuals, families,
and communities who are improperly represented, this case should
be dismissed.
III
A petition for a writ of kalikasan
is a wrong remedy
Rule 7, Part III of the Rules of Procedure for Environmental Cases
pertaines to the writ of kalikasan.  It describes the nature of the writ:
Section 1. Nature of the writ. - The writ is a remedy available to a
natural or juridical person, entity authorized by law, people’s
organization, non-governmental organization, or any public
interest group accredited by or registered with any government
agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces.
(Emphasis supplied)
The writ of kalikasan is a remedy that covers environmental damages
the magnitude of which transcends both political and territorial
boundaries.[60]  It specifically provides that the prejudice to life,
health, or property caused by an unlawful act or omission of a public
official, public employee, or a private individual or entity must be
felt in at least two cities or provinces.[61]  The petition for its issuance
may be filed on behalf of those whose right to a balanced and
healthful ecology is violated, provided that the group or organization
which seeks to represent is duly accredited. [62]
Two things must be examined: first, whether petitioners are qualified
to bring this suit under the requirements of the provisions; and
second, whether there are actual injured parties being represented.  
On the first issue, the following petitioners bring this case as
individuals:
 Rev. Pedro Agiro, Vicar Apostolic of Puerto Princesa[63]
 Rev. Deogracias Iniguez, Jr., Bishop-Emeritus of
Caloocan[64]
 Frances Quimpo[65]
 Teresita R. Perez, Ph.D[66]
 Giovanni Tapang, Ph.D[67]
 Jose Enrique Africa[68]
 Nestor Baguinon[69]
 A. Edsel Tupaz[70]
The following petitioners represent organizations:
 Clemente Bautista Jr., Coordinator of Kalikasan People's
Network for the Environment[71]
 Maria Carolina Araullo, Chairperson of Bagong Alyansang
Makabayan (Bayan)[72]
 Renato Reyes Jr., Secretary-General of Bagong Alyansang
Makabayan (Bayan)[73]
 Hon. Neri Javier Colmenares, Representative of Bayan
Muna Party-list[74]
 Roland Simbulan, Ph.D., Junk VFA Movement[75]
 Hon. Raymond Palatino, Representative of Kabataan Party-
list[76]
 Peter Gonzales, Vice Chairperson of Pambansang Lakas ng
Kilusang Mamamalakaya ng Pilipinas (Pamalakaya) [77]
 Elmer Labog, Chairperson of Kilusang Mayo Uno[78]
Joan May Salvador, Secretary-General of Gabriela [79]
 Theresa Concepcion, Earth Island Institute[80]
 Mary Joan Guan, Executive Director for Center for Women's
Resources[81]
Petitioners satisfy the first requirement as they comprise both natural
persons and groups duly recognized by the government.  It is
doubtful, however, whether there are actual injured parties being
represented.  As discussed previously, a citizen's suit on an
environmental issue must be resorted to responsibly.
Petitioners in this case also seek the issuance of a temporary
environmental protection order or TEPO. Rule 7, Part III of the
Rules of Procedure for Environmental Cases provides:
SEC. 8. Issuance of Temporary Environmental Protection Order
(TEPO). – If it appears from the verified complaint with a prayer for
the issuance of an Environmental Protection Order (EPO) that
the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge of the multiple-
sala court before raffle or the presiding judge of a single-sala court as
the case may be, may issue ex parte a TEPO effective for only
seventy-two (72) hours from date of the receipt of the TEPO by the
party or person enjoined. Within said period, the court where the
case is assigned, shall conduct a summary hearing to determine
whether the TEPO may be extended until the termination of the case.
The court where the case is assigned, shall periodically monitor the
existence of acts that are the subject matter of the TEPO even if
issued by the executive judge, and may lift the same at any time as
circumstances may warrant.
The applicant shall be exempted from the posting of a bond for the
issuance of a TEPO. (Emphasis supplied)
A TEPO is an order which either directs or enjoins a person or
government agency to perform or refrain from a certain act, for the
purpose of protecting, preserving, and/or rehabilitating the
environment.[82]  The crucial elements in its issuance are the presence
of "extreme urgency" and "grave injustice and irreparable injury" to
the applicant.[83]
Petitioners hinge the basis for this prayer on the salvage operations
conducted immediately after the incident.  The remedy is no longer
available considering that all activities to remove the grounded USS
Guardian have been concluded.[84]  Furthermore, the Notice to
Mariners No. 011-2013 issued by the Philippine Coast Guard on
January 29, 2013 effectively set the metes and bounds of the
damaged area.[85]  This notice also prohibited "leisure trips to
Tubbataha" and advised "all watercrafts transitting the vicinity to
take precautionary measures."[86]
In light of the facts of this case, I vote that the petition be also
dismissed for being moot and being brought through the wrong
remedy.
IV
Doctrine of relative jurisdictional immunity
(sovereign immunity)
It is my position that doctrine on relative jurisdictional immunity of
foreign states or otherwise referred to as sovereign immunity should
be further refined.  I am of the view that immunity does not
necessarily apply to all the foreign respondents should the case
have been brought in a timely manner, with the proper remedy,
and in the proper court. Those who have directly and actually
committed culpable acts or acts resulting from gross negligence
resulting in the grounding of a foreign warship in violation of our
laws defining a tortious act or one that protects the environment
which implement binding international obligations cannot claim
sovereign immunity.
Some clarification may be necessary to map the contours of relative
jurisdictional immunity of foreign states otherwise known as the
doctrine of sovereign immunity.
The doctrine of sovereign immunity can be understood either as a
domestic or an international concept.[87]
As a domestic concept, sovereign immunity is understood as the non-
suability of the state.  In the case of the Republic of the Philippines
as a State, this is contained in Article XVI, Section 3 of the 1987
Philippine Constitution, which provides that "[the] State may not be
sued without its consent."
In Air Transportation Office v. Spouses Ramos,[88] this court
underscored the practical considerations underlying the doctrine:
Practical considerations dictate the establishment of an immunity
from suit in favor of the State. Otherwise, and the State is suable at
the instance of every other individual, government service may be
severely obstructed and public safety endangered because of the
number of suits that the State has to defend against . . . .
[89]
 (Emphasis supplied, citation omitted)
The textual reference to “[the] State” in Article XVI, Section 3 of the
Constitution does not refer to foreign governments.  Rather, as a
doctrine in international law, the concept of sovereign immunity is
incorporated into our jurisdiction as international custom or general
principle of international law through Article II, Section 2, which
provides:
Section 2. The Philippine renounces war as an instrument of national
policy, adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations. [90]
Alternatively, should there be an international agreement or a
treaty[91] that articulates the scope of jurisdictional immunity for
other sovereigns, then it can be incorporated through Article VII,
Section 21, which provides:
No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate.
In Republic of Indonesia v. Vinzon,[92] this court ruled that “[the] rule
that a State may not be sued without its consent is a necessary
consequence of the principles of independence and equality of
States.”[93]  However, it did not make any reference to Article XVI,
Section 3 of the Constitution.  Instead, it used Article II, Section
2[94] as basis for its discussion:
International law is founded largely upon the principles of
reciprocity, comity, independence, and equality of States which
were adopted as part of the law of our land under Article II,
Section 2 of the 1987 Constitution. The rule that a State may not be
sued without its consent is a necessary consequence of the
principles of independence and equality of States. As enunciated
in Sanders v. Veridiano II, the practical justification for the doctrine
of sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. In the case
of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in
parem non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another. A contrary attitude would
"unduly vex the peace of nations.”[95] (Emphasis supplied, citations
omitted)
V
Sovereign immunity under international law
Under international law, sovereign immunity remains to be an
abstract concept.  On a basic level, it is understood as a basic right
extended to states by other states on the basis of respect for
sovereignty and independence.[96]  There appears to be a consensus
among states that sovereign immunity as a concept is legally binding.
[97]
  Nevertheless, legal scholars observe that there remains to be a
lack of agreement as to how it is to be invoked or exercised in actual
cases.[98]  Finke presents:
States accept sovereign immunity as a legally binding concept, but
only on a very abstract level. They agree on the general idea of
immunity, but disagree on the extent to which they actually must
grant immunity in a specific case.[99] (Emphasis supplied, citations
omitted)
This vagueness arises from the debate about the sources of
international law for the doctrine of sovereign immunity.
Article 38(1) of the Statute of the International Court of Justice (ICJ
Statute)[100] enumerates the classic sources of international law: [101]
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of
rules of law.
International conventions, or treaties, are “international
agreement[s] concluded between States in written form and governed
by international law, whether embodied in a single instrument, or in
two or more related instruments and whatever its particular
designation.”[102] International custom, or customary international
law, pertains to principles, not necessarily expressed in treaties,
resulting from practices consistently followed by states due to a
sense of legal obligation.[103]  General principles of law recognized
by civilized nations are "(those) principles of law, private and public,
which contemplation of the legal experience of civilized nations
leads one to regard as obvious maxims of jurisprudence of a general
and fundamental character."[104]
Sovereign immunity under treaty law
Attempts have been made to establish sovereign immunity under
treaty law.[105]  On a multilateral level, two treaties on this issue have
been codified: a) the European Convention on State Immunity
(ECSI), and b) the UN Convention on Jurisdictional Immunities of
States (UNCJIS).
The European Convention on State Immunity is a treaty established
through the Council of Europe on May 16, 1972.[106]  In the Council
of Europe's explanatory report, sovereign immunity is defined as "a
concept of international law, which has developed out of the
principle par in parem non habet imperium, by virtue of which one
State is not subject to the jurisdiction of another State." [107]  The
treaty arose out of the need to address cases where states become
involved in areas of private law:
For many years State immunity has occupied the attention of
eminent jurists. It is also the object of abundant case law. The
development of international relations and the increasing
intervention of States in spheres belonging to private law have
posed the problem still more acutely by increasing the number of
disputes opposing individuals and foreign States.
There are, at present, two theories, that of absolute State
immunity which is the logical consequence of the principle stated
above and that of relative State immunity which is tending to
predominate on account of the requirement of modern conditions.
According to this latter theory, the State enjoys immunity for acts
jure imperii but not for acts jure gestionis, that is to say when it
acts in the same way as a private person in relations governed by
private law. This divergence of opinion causes difficulties in
international relations. States whose courts and administrative
authorities apply the theory of absolute State immunity are led to call
for the same treatment abroad. (Emphasis supplied)
However, the European Convention on Sovereign Immunity's
application is limited to the signatories of the treaty:
The Convention requires each Contracting State to give effect to
judgments rendered against it by the courts of another Contracting
State. It is in particular for this reason that it operates only
between the Contracting States on the basis of the special
confidence subsisting among the Members of the Council of
Europe. The Convention confers no rights on nonContracting
States; in particular, it leaves open all questions as to the exercise of
jurisdiction against non-Contracting States in Contracting States, and
vice versa.
On the other hand, the UN Convention on Jurisdictional Immunities
of States[108] is a treaty adopted by the UN General Assembly in
December 2004.  It was opened for signature on January 27, 2005,
but is yet to be in force[109] for lacking the requisite number of
member-state signatories.[110]  At present, it only has 28 signatories,
16 of which have either ratified, accepted, approved, or acceded to
the treaty.[111]
UNCJIS refers to jurisdictional immunities of states as a principle of
customary international law.[112]  Scholars, however, point out that
this posture is not accurate.  According to Nagan and Root:[113]
It may be true that all states recognize jurisdictional immunity,
but as we have already alluded to, that is so only at an abstract
level; there is “substantial disagreement on detail and
substance.”[114] (Emphasis supplied, citations omitted)
Wiesinger adds:
The UN Convention is not a codification of customary
international law concerning enforcement measures either, since it
introduces new categories of State property, which are immune
from execution. Moreover, it contains a connection requirement of
property serving commercial purposes with the entity against which
the claim was directed, which is a novelty in international law.
[115]
 (Emphasis supplied)
The Philippines has neither signed nor ratified the UNCJIS.  Article
VII, Section 21 of the Constitution clearly provides the legal
requisites to a valid and enforceable international treaty: "No treaty
or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate."
Senior Associate Justice Antonio T. Carpio ably points to the UN
Convention on the Law of the Sea (UNCLOS) as basis for the waiver
of sovereign immunity in this case, on account of a warship entering
a restricted area and causing damage to the TRNP reef system.  This
is based on a reading of Articles 31 and 32 of the UNCLOS, thus:
Article 31
Responsibility of the flag State for damage caused by a warship or
other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or
damage to the coastal State resulting from the non-compliance by a
warship or other government ship operated for non-commercial
purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions
of this Convention or other rules of international law.
This is, however, subject to Article 32 of the same treaty which
provides:
Article 32
Immunities of warships and other government ships operated for
non-commercial purposes    
With such exceptions as are contained in subsection A and in articles
30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial
purposes.
I agree that the UNCLOS does provide an opening clarifying the
“international responsibility” of the flag ship for non-compliance by
a warship with the laws of a coastal State.  However, because of
Article 32 of the same treaty, it would seem that it should not be the
only basis for this court to infer either a waiver by the United States
or authority under international law for domestic courts to shape
their own doctrines of sovereign jurisdictional immunity.
Other international agreements
The text of Article VII, Section 21 would seem to require Senate
concurrence for treaties and “international agreements.”  The term
“international agreements,” however, for purposes of granting
sovereign immunity, should not cover mere executive agreements.
We are aware of Bayan Muna v. Romulo[116] where the ponente for
this court held:
. . . International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they
do not require legislative concurrence and are usually less formal
and deal with a narrower range of subject matters than treaties.
Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the
contracting states concerned, as long as the negotiating
functionaries have remained within their powers. Neither, on the
domestic sphere, can one be held valid if it violates the Constitution.
Authorities are, however, agreed that one is distinct from another for
accepted reasons apart from the concurrence-requirement aspect. As
has been observed by US constitutional scholars, a treaty has greater
"dignity" than an executive agreement, because its constitutional
efficacy is beyond doubt, a treaty having behind it the authority of
the President, the Senate, and the people; a ratified treaty, unlike an
executive agreement, takes precedence over any prior statutory
enactment.[117] (Emphasis supplied, citations omitted)
This statement, however, should be confined only to the facts of that
case.  Executive agreements are not the same as treaties as a source
of international law.  It certainly may have a different effect in
relation to our present statutes unlike a treaty that is properly ratified.
Due to the nature of respondents' position in the United States
Armed Forces, the Visiting Forces Agreement of 1998 (VFA) is
relevant in this case.  In particular, the question of whether the VFA,
executed between the Republic of the Philippines and the United
States government, may be treated as a "treaty" upon which the
doctrine of foreign sovereign immunity is founded must be
addressed.
In BAYAN v. Zamora,[118] this court tackled the issues pertaining to
the constitutionality of the VFA.  It was described as "consist[ing] of
a Preamble and nine (9) Articles, [and it] provides for the mechanism
for regulating the circumstances and conditions under which [the]
US Armed Forces and defense personnel maybe present in the
Philippines. . . . "[119]
As a preliminary issue, this court ruled that the Senate concurrence
as required by the Constitution was achieved, thereby giving VFA a
legally binding effect upon the government.[120]  However, the
agreement's characterization as a "treaty" was put in question.  This
court held that despite the non-concurrence of the United States
Senate, the VFA is validly categorized as a treaty:
This Court is of the firm view that the phrase "recognized as a
treaty" means that the other contracting party accepts or
acknowledges the agreement as a treaty. To require the other
contracting state, the United States of America in this case, to submit
the VFA to the United States Senate for concurrence pursuant to its
Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the
Constitution are to be given their ordinary meaning except where
technical terms are employed, in which case the significance thus
attached to them prevails. Its language should be understood in the
sense they have in common use.
Moreover, it is inconsequential whether the United States treats the
VFA only as an executive agreement because, under international
law, an executive agreement is as binding as a treaty. To be sure,
as long as the VFA possesses the elements of an agreement under
international law, the said agreement is to be taken equally as a
treaty.
A treaty, as defined by the Vienna Convention on the Law of
Treaties, is "an international instrument concluded between States in
written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments, and
whatever its particular designation." There are many other terms
used for a treaty or international agreement, some of which are: act,
protocol, agreement, compromis d’ arbitrage, concordat, convention,
declaration, exchange of notes, pact, statute, charter and modus
vivendi. All writers, from Hugo Grotius onward, have pointed out
that the names or titles of international agreements included under
the general term treaty have little or no legal significance. Certain
terms are useful, but they furnish little more than mere description.
Article 2(2) of the Vienna Convention provides that "the provisions
of paragraph 1 regarding the use of terms in the present
Convention are without prejudice to the use of those terms, or to
the meanings which may be given to them in the internal law of the
State.
Thus, in international law, there is no difference between treaties
and executive agreements in their binding effect upon states
concerned, as long as the negotiating functionaries have remained
within their powers. International law continues to make no
distinction between treaties and executive agreements: they are
equally binding obligations upon nations.
In our jurisdiction, we have recognized the binding effect of
executive agreements even without the concurrence of the Senate
or Congress. . . .

....
The records reveal that the United States Government, through
Ambassador Thomas C. Hubbard, has stated that the United States
government has fully committed to living up to the terms of the
VFA. For as long as the United States of America accepts or
acknowledges the VFA as a treaty, and binds itself further to comply
with its obligations under the treaty, there is indeed marked
compliance with the mandate of the Constitution.[121] (Emphasis
supplied, citations omitted)
Under the US legal system, however, an executive agreement, while
legally binding, may not have the same effect as a treaty.  It may,
under certain circumstances, be considered as inferior to US law
and/or Constitution.  According to Garcia:[122]
Under the U.S. legal system, international agreements can be entered
into by means of a treaty or an executive agreement. The
Constitution allocates primary responsibility for entering into such
agreements to the executive branch, but Congress also plays an
essential role. First, in order for a treaty (but not an executive
agreement) to become binding upon the United States, the Senate
must provide its advice and consent to treaty ratification by a two-
thirds majority. Secondly, Congress may authorize congressional-
executive agreements. Thirdly, many treaties and executive
agreements are not self-executing, meaning that implementing
legislation is required to provide U.S. bodies with the domestic legal
authority necessary to enforce and comply with an international
agreement’s provisions.
The status of an international agreement within the United States
depends on a variety of factors. Self-executing treaties have a status
equal to federal statute, superior to U.S. state law, and inferior to the
Constitution. Depending upon the nature of executive agreements,
they may or may not have a status equal to federal statute. In any
case, self-executing executive agreements have a status that is
superior to U.S. state law and inferior to the Constitution. Treaties
or executive agreements that are not self-executing have been
understood by the courts to have limited status domestically;
rather, the legislation or regulations implementing these
agreements are controlling.[123] (Emphasis supplied, citation
omitted)
Domestic politics and constitutional guidelines also figure into the
effect of an executive agreement in the United States. Garcia adds:
The great majority of international agreements that the United
States enters into are not treaties but executive agreements—
agreements entered into by the executive branch that are not
submitted to the Senate for its advice and consent. Congress
generally requires notification upon the entry of such an agreement.
Although executive agreements are not specifically discussed in the
Constitution, they nonetheless have been considered valid
international compacts under Supreme Court jurisprudence and as a
matter of historical practice.
....
Sole executive agreements rely on neither treaty nor congressional
authority to provide for their legal basis. The Constitution may
confer limited authority upon the President to promulgate such
agreements on the basis of his foreign affairs power. If the President
enters into an executive agreement pursuant to and dealing with an
area where he has clear, exclusive constitutional authority — such as
an agreement to recognize a particular foreign government for
diplomatic purposes — the agreement is legally permissible
regardless of Congress’s opinion on the matter. If, however, the
President enters into an agreement and his constitutional authority
over the agreement’s subject matter is unclear, a reviewing court
may consider Congress’s position in determining whether the
agreement is legitimate. If Congress has given its implicit approval
to the President entering the agreement, or is silent on the matter, it is
more likely that the agreement will be deemed valid. When Congress
opposes the agreement and the President’s constitutional authority to
enter the agreement is ambiguous, it is unclear if or when such an
agreement would be given effect.[124] (Emphasis supplied, citation
omitted)
The recognition of the complex nature and legal consequences of an
executive agreement entered into by the United States with another
State must not be taken lightly.  This is especially in light of the
invocation of "international comity", which loosely refers to
"applying foreign law or limiting domestic jurisdiction out of respect
for foreign sovereignty."[125]
As it stands, international comity is by itself no longer a simple
matter.  In quoting an 1895 US case, Hilton v. Guyot,[126] Paul argues
that at the beginning of the 20th century, the underlying principle of
international comity was the respect afforded by one sovereign to
another.  At present, however, Paul posits:
For all these reasons, international comity would seem to be too
vague, incoherent, illusory, and ephemeral to serve as a foundation
for U.S. private international law. Yet, it is precisely these qualities
that have allowed the doctrine of international comity to mutate
over time in ways that respond to different geopolitical
circumstances. Specifically, international comity has shifted in three
distinct respects. First, the meaning of comity has shifted over
time. Originally, international comity was a discretionary doctrine
that empowered courts to decide when to defer to foreign law out of
respect for foreign sovereigns. Comity has become a rule that
obligates courts to apply foreign law in certain circumstances.
Second, the object of comity has changed. Whereas once courts
justified applying foreign law out of deference to foreign sovereigns,
courts later justified their decisions out of deference to the autonomy
of private parties or to the political branches. Most recently, courts
have justified limits on domestic law out of deference to the global
market. Third, the function of comity has changed. Comity is no
longer merely a doctrine for deciding when to apply foreign law; it
has become a justification for deference in a wide range of cases
concerning prescriptive, adjudicatory, and enforcement jurisdiction.
(Emphasis supplied, citation omitted)
On a substantive note, another issue raised in BAYAN v. Zamora is
whether the VFA amounted to an abdication of Philippine
sovereignty insofar as the jurisdiction of local courts "to hear and try
offenses committed by US military personnel"[127] was concerned. 
Upon finding at the outset that the VFA did not amount to grave
abuse of discretion, this court no longer proceeded to rule on this
matter:
In fine, absent any clear showing of grave abuse of discretion on
the part of respondents, this Court — as the final arbiter of legal
controversies and staunch sentinel of the rights of the people — is
then without power to conduct an incursion and meddle with such
affairs purely executive and legislative in character and nature. For
the Constitution no less, maps out the distinct boundaries and limits
the metes and bounds within which each of the three political
branches of government may exercise the powers exclusively and
essentially conferred to it by law.[128] (Emphasis supplied)
In sum, the extent of the VFA's categorization as between the
Philippine and United States government — either as a
"treaty"/"executive agreement" or as a matter subject to international
comity — remains vague.  Nevertheless, it is certain that the United
States have made a political commitment to recognize the provisions
and execute their obligations under the VFA.  This includes
respecting jurisdictional issues in cases involving an offense
committed by a US military personnel.
Sovereign immunity as
customary international law
Customary international law traditionally pertains to:
. . . the collection of international behavioral regularities that
nations over time come to view as binding on them as a matter of
law. This standard definition contain two elements. There must be a
widespread and uniform practice of nations. And nations must
engage in the practice out of a sense of legal obligation. This
second requirement, often referred to as opinio juris, is the central
concept of CIL. Because opinio juris refers to the reason why a
nation acts in accordance with a behavioral regularity, it is often
described as the “psychological” element of CIL. It is what
distinguishes a national act done voluntarily or out of comity from
one that a nation follows because required to do so by law. Courts
and scholars say that a longstanding practice among nations “ripens”
or “hardens” into a rule of CIL when it becomes accepted by nations
as legally binding.[129](Emphasis supplied, citation omitted)
Nagan and Root[130] categorize the doctrine of sovereign immunity as
a customary rule of international law.  They argue that the doctrine,
which is also referred to as jurisdictional immunity, "has its roots in
treaties, domestic statutes, state practice, and the writings of juris
consults".[131]  Quoting United States law,[132] Nagan and Root state:
. . . The doctrine of jurisdictional immunity takes the abstract
concept of sovereignty and applies it to facts on the ground. As the
Restatement notes, “Under international law, a state or state
instrumentality is immune from the jurisdiction of the courts of
another state . . . .” The Restatement further states unambiguously
that the rule of sovereign immunity is “an undisputed principle of
international law.” . . .
The doctrine of sovereign immunity is one of the older concepts in
customary international law. . . .[133] (Emphasis supplied, citation
omitted)
While the doctrine in itself is recognized by states, they do so only in
abstraction.[134]
There appears to be a general recognition that foreign states are to be
afforded immunity on account of equality of states, but the "practice"
lacks uniformity.  Finke points out that the doctrine as exercised by
different states suffers from "substantial disagreement on detail and
substance."[135]  The inconsistencies in state practice render the
possibility of invoking international comity even more problematic.
The legislation of other states highlight the differences in specific
treatment of sovereign immunity.  For instance, the United States
Foreign Sovereign Immunities Act (FSIA) of 1978 was enacted in
order to render uniform determinations in cases involving sovereign
immunity.[136]  While it recognizes sovereign immunity, it provides
the following exceptions:
. . . the general principle that a foreign state is immune from the
jurisdiction of the courts of the United States, but sets forth several
limited exceptions. The primary exceptions are
1.  waiver (“the foreign state has waived its immunity either
expressly or by implication”),
2.  commercial activity (“the action is based upon a commercial
activity carried on in the United States by the foreign state”),and
3.  torts committed by a foreign official within the United
States (the “suit is brought against a foreign State for personal
injury or death, or damage to property occurring in the United
States as a result of the tortious act of an official or employee of
that State acting within the scope of his office or employment”).
(Emphasis supplied, citation omitted)
The United Kingdom State Immunity Act of 1978 also recognizes
general immunity from jurisdiction, subject to the following
exceptions: a) submission to jurisdiction;[137] b) commercial
transactions and contracts to be performed in the United Kingdom;
[138]
 c) contracts of employment;[139] d) personal injuries and damage
to property;[140] e) ownership, possession, and use of property;[141] f)
patents, trademarks, etc.;[142] g) membership of bodies corporate, etc.;
[143]
 h) arbitration;[144] i) ships used for commercial purposes;[145] and
value-added tax, customs duties, etc.[146]
The Australian Foreign States Immunities Act of 1985 provides for
exceptions similar to the ones found in the United Kingdom law. [147]
Aside from the variations in foreign laws, rulings in domestic cases
have also remained on a theoretical level.  There appears to be a
general refusal by international bodies to set particular rules and
guidelines for the disposition of actual cases involving sovereign
immunity.
Two cases are relevant for the purpose of discussing sovereign
immunity as an international customary norm: the International
Court of Justice's decision in Germany v. Italy, and the International
Tribunal for the Law of the Sea's procedural order on the Ara
Libertad case.  While stare decisis does not apply, these are
nevertheless instructive in understanding the status of sovereign
immunity in international law.
The issue of sovereign immunity as invoked between two States was
dealt with in the 2012 case of Jurisdictional Immunities of the State
(Germany v. Italy).[148]  This arose out of a civil case brought before
Italian domestic courts, seeking reparations from Germany for grave
breaches of international humanitarian law during World War II. [149] 
The Italian Court of Cassation held that it had jurisdiction over the
claims on the ground that state immunity was untenable if the act
complained of was an international crime. [150]  Thereafter, an Italian
real estate owned by Germany was attached for execution. [151]  As a
result, Germany brought the case before the International Court of
Justice, questioning the legality of the judgment rendered by the
Italian court. It based its claim on state immunity. [152]
The International Court of Justice ruled that Italy had violated
customary international law when it took cognizance of the claim
against Germany before its local courts. [153]  It held that:
In the present context, State practice of particular significance is to
be found in the judgments of national courts faced with the
question whether a foreign State is immune, the legislation of
those States which have enacted statutes dealing with immunity,
the claims to immunity advanced by States before foreign courts
and the statements made by States, first in the course of the
extensive study of the subject by the International Law
Commission and then in the context of the adoption of the United
Nations Convention. Opinio juris in this context is reflected in
particular in the assertion by States claiming immunity that
international law accords them a right to such immunity from the
jurisdiction of other States; in the acknowledgment, by States
granting immunity, that inter- national law imposes upon them an
obligation to do so; and, conversely, in the assertion by States in
other cases of a right to exercise jurisdiction over foreign States.
While it may be true that States sometimes decide to accord an
immunity more extensive than that required by international law, for
present purposes, the point is that the grant of immunity in such a
case is not accompanied by the requisite opinio juris and therefore
sheds no light upon the issue currently under consideration by the
Court.
56. Although there has been much debate regarding the origins of
State immunity and the identification of the principles underlying
that immunity in the past, the International Law Commission
concluded in 1980 that the rule of State immunity had been
“adopted as a general rule of customary international law solidly
rooted in the current practice of States” (Yearbook of the
International Law Commission, 1980, Vol. II (2), p. 147, para.
26). That conclusion was based upon an extensive survey of State
practice and, in the opinion of the Court, is confirmed by the
record of national legislation, judicial decisions, assertions of a
right to immunity and the comments of States on what became the
United Nations Convention.That practice shows that, whether in
claiming immunity for themselves or according it to others, States
generally proceed on the basis that there is a right to immunity
under international law, together with a corresponding obligation
on the part of other States to respect and give effect to that
immunity.
57. The Court considers that the rule of State immunity occupies
an important place in international law and international
relations. It derives from the principle of sovereign equality of
States, which, as Article 2, paragraph 1, of the Charter of the
United Nations makes clear, is one of the fundamental principles
of the international legal order.
This principle has to be viewed together with the principle that
each State possesses sovereignty over its own territory and that
there flows from that sovereignty the jurisdiction of the State over
events and persons within that territory. Exceptions to the
immunity of the State represent a departure from the principle of
sovereign equality. Immunity may represent a departure from the
principle of territorial sovereignty and the jurisdiction which flows
from it. (Emphasis supplied)[154]
The International Court of Justice deemed it unnecessary to discuss
the difference between the application of sovereign immunity in
sovereign acts (jus imperii) and non-sovereign activities (jus
gestionis) of a State.[155]  As to the argument that a serious violation
of international law or peremptory norms (jus cogens) is an
exception to sovereign immunity, the International Court of Justice
held that:
82. At the outset, however, the Court must observe that the
proposition that the availability of immunity will be to some extent
dependent upon the gravity of the unlawful act presents a logical
problem. Immunity from jurisdiction is an immunity not merely
from being subjected to an adverse judgment but from being
subjected to the trial process. It is, therefore, necessarily
preliminary in nature. Consequently, a national court is required
to determine whether or not a foreign State is entitled to immunity
as a matter of international law before it can hear the merits of the
case brought before it and before the facts have been established.
If immunity were to be dependent upon the State actually having
committed a serious violation of international human rights law or
the law of armed conflict, then it would become necessary for the
national court to hold an enquiry into the merits in order to
determine whether it had jurisdiction. If, on the other hand, the
mere allegation that the State had committed such wrongful acts
were to be sufficient to deprive the State of its entitlement to
immunity, immunity could, in effect be negated simply by skilful
construction of the claim.

83. That said, the Court must nevertheless inquire whether customary
international law has developed to the point where a State is not
entitled to immunity in the case of serious violations of human rights
law or the law of armed conflict. Apart from the decisions of the
Italian courts which are the subject of the present proceedings, there
is almost no State practice which might be considered to support the
proposition that a State is deprived of its entitlement to immunity in
such a case. . . .
84. In addition, there is a substantial body of State practice from
other countries which demonstrates that customary international
law does not treat a State’s entitlement to immunity as dependent
upon the gravity of the act of which it is accused or the peremptory
nature of the rule which it is alleged to have violated.
85. That practice is particularly evident in the judgments of
national courts. Arguments to the effect that international law no
longer required State immunity in cases of allegations of serious
violations of international human rights law, war crimes or crimes
against humanity have been rejected by the courts in Canada
(Bouzari v. Islamic Republic of Iran, Court of Appeal of Ontario,
[2004] Dominion Law Reports (DLR), 4th Series, Vol. 243, p. 406;
ILR, Vol. 128, p. 586; allegations of torture), France (judgment of
the Court of Appeal of Paris, 9 September 2002, and Cour de
cassation, No. 02-45961, 16 December 2003, Bulletin civil de la
Cour de cassation (Bull. civ.), 2003, I, No. 258, p. 206 (the Bucheron
case); Cour de cassation, No. 03-41851, 2 June 2004, Bull. civ.,
2004, I, No. 158, p. 132 (the X case) and Cour de cassation, No. 04-
47504, 3 January 2006 (the Grosz case); allegations of crimes against
humanity), Slovenia (case No. Up-13/99, Constitutional Court of
Slovenia; allegations of war crimes and crimes against humanity),
New Zealand (Fang v. Jiang, High Court, [2007] New Zealand
Administrative Reports (NZAR), p. 420; ILR, Vol. 141, p. 702;
allegations of torture), Poland (Natoniewski, Supreme Court,
2010, Polish Yearbook of International Law, Vol. XXX, 2010, p.
299; allegations of war crimes and crimes against humanity) and the
United Kingdom (Jones v. Saudi Arabia, House of Lords, [2007] 1
Appeal Cases (AC) 270; ILR, Vol. 129, p. 629; allegations of
torture).
....
93. This argument therefore depends upon the existence of a conflict
between a rule, or rules, of jus cogens, and the rule of customary law
which requires one State to accord immunity to another. In the
opinion of the Court, however, no such conflict exists. Assuming for
this purpose that the rules of the law of armed conflict which prohibit
the murder of civilians in occupied territory, the deportation of
civilian inhabitants to slave labour and the deportation of prisoners
of war to slave labour are rules of jus cogens, there is no conflict
between those rules and the rules on State immunity. The two sets of
rules address different matters. The rules of State immunity are
procedural in character and are confined to determining whether
or not the courts of one State may exercise jurisdiction in respect
of another State. They do not bear upon the question whether or
not the conduct in respect of which the proceedings are brought
was lawful or unlawful. That is why the application of the con-
temporary law of State immunity to proceedings concerning events
which occurred in 1943-1945 does not infringe the principle that law
should not be applied retrospectively to determine matters of legality
and responsibility (as the Court has explained in paragraph 58
above). For the same reason, recognizing the immunity of a
foreign State in accordance with customary international law does
not amount to recognizing as lawful a situation created by the
breach of a jus cogens rule, or rendering aid and assistance in
maintaining that situation, and so cannot contravene the principle
in Article 41 of the International Law Commission’s Articles on
State Responsibility.
95. To the extent that it is argued that no rule which is not of the
status of jus cogens may be applied if to do so would hinder the
enforcement of a jus cogens rule, even in the absence of a direct
conflict, the Court sees no basis for such a proposition. A jus
cogens rule is one from which no derogation is permitted but the
rules which determine the scope and extent of jurisdiction and when
that jurisdiction may be exercised do not derogate from those
substantive rules which possess jus cogens status, nor is there
anything inherent in the concept of jus cogens which would require
their modification or would displace their application. The Court has
taken that approach in two cases, notwithstanding that the effect was
that a means by which a jus cogens rule might be enforced was
rendered unavailable. In Armed Activities, it held that the fact that
a rule has the status of jus cogens does not confer upon the Court
a jurisdiction which it would not otherwise possess (Armed
Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64, and p.
52, para. 125). In Arrest Warrant, the Court held, albeit without
express reference to the concept of jus cogens, that the fact that a
Minister for Foreign Affairs was accused of criminal violations of
rules which undoubtedly possess the character of jus cogens did not
deprive the Democratic Republic of the Congo of the entitlement
which it possessed as a matter of customary international law to
demand immunity on his behalf (Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, I.C.J.
Reports 2002, p. 24, para. 58, and p. 33, para. 78). The Court
considers that the same reasoning is applicable to the application of
the customary international law regarding the immunity of one State
from proceedings in the courts of another.[156]
Though pertaining to provisional measures, another case that
involved the issue of sovereign immunity is the "Ara Libertad" case
(Argentina v. Ghana).  Lodged before the International Tribunal for
the Law of the Sea (ITLOS), the case arose after "ARA Fragata
Libertad," an Argentinian warship, was alleged to have been
detained and subjected to several judicial measures by the Republic
of Ghana.[157]  In doing so, Argentina alleged that Ghana violated the
immunities from jurisdiction and execution extended to the warship
by its flag.[158]
Ghana countered:
. . . that the coastal State [Ghana] enjoys full territorial sovereignty
over internal waters, and that any foreign vessel located in internal
waters is subject to the legislative, administrative, judicial and
jurisdictional powers of the coastal State."[159] (Emphasis supplied)
The order dated December 15, 2012 ruled the following:
. . . that a warship is an expression of the sovereignty of the State
whose flag it flies;[160]
. . . in accordance with general international law, a warship enjoys
immunity, including in internal waters. . . .[161]
....
Ghana shall forthwith and unconditionally release the frigate ARA
Libertad, shall ensure that the frigate ARA Libertad, its Commander
and crew are able to leave the port of Tema and the maritime areas
under the jurisdiction of Ghana, and shall ensure that the frigate
ARA Libertad is resupplied to that end.[162] (Citation supplied)
In sum, the International Court of Justice's position that sovereign
immunity remains applicable even if the action is based upon
violations of international law should be limited only to acts during
armed conflict. Jurisdictional Immunities of the State (Germany v.
Italy) also referred to actions commited during World War II and
especially referred to the situation of international law at that time.  behaviour."[163]  Principles recognize a general idea and serve as a
The majority reflected the attitude that sovereign immunity is a
customary norm.  It, however, recognizes that uniformity in state
practice is far from the consensus required to articulate specific rules
pertaining to other circumstances — such as transgressions of
foreign warships of domestic legislation while granted innocent
passage.  It impliedly accepted that states enjoyed wide latitude to
specify their own norms.
The provisional order in the ITLOS Ara Libertad case should also be
read within its factual ambient.  That is, that the warship was the
subject of seizure to enforce a commercial obligation of its flag
state.  In this case, the foreign warship enjoys sovereign immunity.  process, in order to promote the consistency of International Law. [165]
The case, however, did not interpret Sections 31 and 32 of the
UNCLOS.
On this note, it is my opinion that there would be no violation of
customary international law or existing treaty law if this court
further refines the limits of the doctrine of sovereign immunity's
application when determining jurisdictional immunities of foreign
warships specifically when it violates domestic laws implementing
international obligations even while on innocent passage.
Sovereign immunity as
general principle of law
There are indications from international legal scholars that sovereign
immunity might make more sense if it is understood as a general
principle of international law rather than as international obligation
arising out of treaty or customary norm.
Finke suggests that this provides the better platform.  Whereas a rule
is more precise and consistent in both its application and legal
consequences, a principle "allows for a broader spectrum of possible
guide in policy determinations, rather than prescribe a particular
mode of action, which is what rules do.  This distinction is
significant, as principles provide the leeway to accommodate legal
and factual circumstances surrounding each case that customary
rules generally do not.[164]
General principles of international law are said to be:
. . . an autonomous, created by general consensus, systematically
fundamental part of International Law, that consists of different
normative notions, in which judges refer to, through a creative
Clearly, sovereign immunity is a doctrine recognized by states under
the international law system.  However, its characterization as a
principle is more appropriate in that "the extent to which foreign
states are awarded immunity differs from state to state." [166]  This
appears to be an accepted arrangement in light of the different state
immunity laws all over the world.
As it stands, states are allowed to draw the line in the application of
sovereign immunity in cases involving foreign states and their
agents.  As a principle of international law, it is deemed
automatically incorporated in our domestic legal system as per
Article II, Section 2 of the Constitution.  Considering this leeway,
along with the urgency and importance of the case at hand, the
Philippines is, therefore, free to provide guidelines consistent with
international law, domestic legislation, and existing jurisprudence.
Exceptions to sovereign
immunity
Our own jurisprudence is consistent with the pronouncement that the
doctrine of sovereign immunity is not an absolute rule.  Thus, the
doctrine should take the form of relative sovereign jurisdictional
immunity.[167]
The tendency in our jurisprudence moved along with the
development in other states.
States began to veer away from absolute sovereign immunity when
"international trade increased and governments expanded into what
had previously been private spheres."[168]  The relative theory of
sovereign immunity distinguishes a state's official (acta jure imperii)
from private (acta jure gestionis) conduct.[169]  The distinction is
founded on the premise "[that] once the sovereign has descended
from his throne and entered the marketplace[,] he has divested
himself of his sovereign status and is therefore no longer immune to
the domestic jurisdiction of the courts of other countries." [170]
In the 2003 case of Republic of Indonesia v. Vinzon, this court
enunciated that in cases involving foreign states, the basis of
sovereign immunity is the maxim par in parem non habet imperium.  In JUSMAG, this court stated:
Founded on sovereign equality, a state cannot assert its jurisdiction
over another.[171]  To do so otherwise would "unduly vex the peace of
nations."[172]  However, it also underscored that the doctrine only
applies to public acts or acts jure imperii, thus, referring to the
relative theory. JUSMAG Philippines v. NLRC[173] discussed the
restrictive application:
In this jurisdiction, we recognize and adopt the generally accepted
principles of international law as part of the law of the
land. Immunity of State from suit is one of these universally
recognized principles. In international law, "immunity" is
commonly understood as an exemption of the state and its organs
from the judicial jurisdiction of another state. This is anchored on
the principle of the sovereign equality of states under which one state
cannot assert jurisdiction over another in violation of the maxim par
in parem non habet imperium (an equal has no power over an equal).
....
As it stands now, the application of the doctrine of immunity from
suit has been restricted to sovereign or governmental activities
(jure imperii). The mantle of state immunity cannot be extended to
commercial, private and proprietary acts (jure gestionis).
[174]
 (Emphasis supplied, citations omitted)
In United States of America v. Ruiz,[175] which dealt with a contract
involving the repair of wharves in Subic Bay's US naval installation,
this court further adds that:
. . . the correct test for the application of State immunity is not the
conclusion of a contract by a State but the legal nature of the
act. . . .[176] (Emphasis supplied)
. . . if the contract was entered into in the discharge of its
governmental functions, the sovereign state cannot be deemed to
have waived its immunity from suit.[177] (Emphasis supplied, citation
omitted)
These cases involved contracts.  This made the determination of
whether there was waiver on the part of the state simpler.
Further in Municipality of San Fernando, La Union v. Firme,[178] this
court stated that two exceptions are a) when the State gives its
consent to be sued and b) when it enters into a business contract. [179]  that "[the] rational for this ruling is that the doctrine of state
It ruled that:
Express consent may be embodied in a general law or a special
law.
....
Consent is implied when the government enters into business
contracts, thereby descending to the level of the other contracting
party, and also when the State files a complaint, thus opening itself
to a counterclaim.[180] (Emphasis supplied, citations omitted)
Other exceptions are cases involving acts unauthorized by the State,
and violation of rights by the impleaded government official.  In the
1970 case of Director of Bureau of Telecommunications, et al. v.
Aligaen, et al.,[181] this court held that:
Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers
by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the
rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State
officer or the director of a State department on the ground that,
while claiming to act for the State, he violates or invades the
personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its
consent.[182] (Emphasis supplied, citations omitted)
Shauf v. Court of Appeals[183] evolved the doctrine further as it stated
immunity cannot be used as an instrument for perpetrating an
injustice."[184]
Tortious acts or crimes committed while discharging official
functions are also not covered by sovereign immunity.  Quoting the
ruling in Chavez v. Sandiganbayan,[185] this court held American
naval officers personally liable for damages in Wylie v. Rarang,[186] to
wit:
. . . The petitioners, however, were negligent because under their
direction they issued the publication without deleting the name
"Auring." Such act or omission is ultra viresand cannot be part of
official duty. It was a tortious act which ridiculed the private
respondent.[187]
We note that the American naval officers were held to be
accountable in their personal capacities.[188]
As it stands, the Philippines has no law on the application of
sovereign immunity in cases of damages and/or violations of
domestic law involving agents of a foreign state.  But our
jurisprudence does have openings to hold those who have committed
an act ultra vires responsible in our domestic courts.
As previously discussed, it was held in Germany v. Italy that the
issue of implied waiver of sovereign immunity and a State's
commission of a serious violation of a peremptory norm (jus cogens)
are two independent areas.  This reflects one of the positions taken
by scholars in the jurisdiction-immunity discourse:
Jurisdiction and its limits have developed differently depending on
the subject matter. The jurisdiction to adjudicate in civil matters has,
for example, developed mainly in the context of private international
law, even though it is not unrelated to public international
law. Immunity, on the other hand, is linked to official acts of a
state (if we accept the principal distinction between private and
public acts) and is therefore more sensitive to the sovereignty of the
foreign state. Linking immunity to the limits of jurisdiction to
adjudicate in civil matters would therefore mean disregarding the
official character of the foreign state's conduct. [189] (Emphasis
supplied, citation omitted)
This ruling holds no value as a precedent, and, therefore, does not
preclude the Philippines to make a determination that may be
different from the International Court of Justice's ruling.  Its value
must only be to elucidate on the concept of sovereign immunity, in
the context of that case, as the general rule with the possibility of
other exceptions.
committed culpable acts or acts resulting from gross negligence
resulting in the grounding of a foreign warship in violation of our
laws defining a tortious act or one that protects the environment
which implement binding international obligations cannot claim
sovereign immunity.
Certainly, this petition being moot and not brought by the proper
parties, I agree that it is not the proper case where we can lay down
this doctrine.  I, therefore, can only concur in the result.
ACCORDINGLY, I vote to DISMISS the petition.
 G.R. No. 101083, July 30, 1993, 224 SCRA 792 [Per J. Davide,
[1]

Jr., En Banc].
Furthermore, if we consider the doctrine of sovereign immunity as a
binding general principle of international law rather than an  See J. Finke, Sovereign Immunity: Rule, Comity or Something
[2]

international customary norm, the particular rules and guidelines in Else?, 21 (4) Eur J Int Law 853-881, 854 (2011) .
its application and invocation may be determined on a domestic level
either through statute or by jurisprudence.  Id. at 856.
[3]

It is difficult to imagine that the recognition of equality among  Id.

[4]

nations is still, in these modern times, as absolute as we have held it

to be in the past or only has commercial acts as an exception.   Rollo, pp. 89–92.
[5]

International law has conceded jus cogens rules of international law

and other obligations erga omnes.  It is time that our domestic  Id. at 5–7.
[6]

jurisprudence adopts correspondingly.

 Id. at 7–8.
[7]

Considering the flexibility in international law and the doctrines that

we have evolved so far, I am of the view that immunity does not  Id. at 13.
[8]

necessarily apply to all the foreign respondents should the case

have been brought in a timely manner, with the proper remedy,  Id. at 194.
[9]

and in the proper court.  Those who have directly and actually
  Id. at 196.
[10]
“1.   Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States
 Id. at 198.
[11]
personnel with respect to offenses committed within the Philippines
and punishable under the law of the Philippines.
 All three notes were similarly worded as regards its request for
[12]
(b) United States military authorities shall have the right to exercise
diplomatic clearance. The amendments only pertained to the arrival within the Philippines all criminal and disciplinary jurisdiction
and departure dates of the vessel. conferred on them by the military law of the United States over
United States personnel in the Philippines.
 Rollo, pp. 333–334.
[13]

2. (a) Philippine authorities exercise exclusive jurisdiction over

 Id. at 336.
[14]
United States personnel with respect to offenses, including offenses
relating to the security of the Philippines, punishable under the laws
 Id. at 161.
[15]
of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over
 Id.
[16]
United States personnel with respect to offenses, including offenses
relating to the security of the United States, punishable under the
 Id.
[17]
laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article,
 Id. at 145.
[18]
an offense relating to security means: (1) treason, (2) sabotage,
espionage or violation of any law relating to national defense.”
 Id. at 255.
[19]

 Rollo, p. 36.
[26]

 Id. at 31.
[20]

 Id. at 19.
[27]

 Id. at 5–7.
[21]

 Id. at 47, as per Rep. Act No. 10067, sec. 19.

[28]

 Rollo, p. 32.
[22]

 Id. at 47.
[29]

 Id. at 37–38.
[23]

 Id. at 38.
[30]

 598 Phil. 262 (2009) [Per J. Azcuna, En Banc].

[24]

 Id.
[31]

 Sections 1 and 2 of Article V provide:

[25]

 Id. at 41.
[32]
  Petitioners cited the United States Code (16 U.S.C.A. § 19jj-1(b))
[33]
 RULES OF CIVIL PROCEDURE, Rule 3, sec. 3.
[44]

for the definition of liability in rem: “Any instrumentality, including

but not limited to a vessel, vehicle, aircraft, or other equipment that  REVISED PROCEDURE ON ENVIRONMENTAL CASES,
[45]

destroys, causes the loss of, or injures any park system resource or Rule II, sec. 5.
any marine or aquatic park resource shall be liable in rem to the
United States for response costs and damages resulting from such  G.R. No. 101083, July 30, 1993, 224 SCRA 792, 803 [Per J.
[46]

destruction, loss, or injury to the same extent as a person is liable Davide, Jr., En Banc].
under subsection (a) of this section.”
 Id.
[47]

 Rollo, p. 40.
[34]

 Heirs of Sotto v. Palicte, G.R. No. 159691, June 13, 2013, 698

[48]

 Id. at 48.
[35]
SCRA 294, 308 [Per J. Bersamin, First Division].

 Id.
[36]
 Id. at 304.
[49]

 Id. at 4.
[37]
 Id. at 306.
[50]

 RULES OF CIVIL PROCEDURE, Rule 3, sec. 2.

[38]
 Id. at 308.
[51]

 See Consumido v. Ros, 555 Phil. 652, 658 (2007) [Per J. Tinga,

[39]
 157 Phil. 551 (1974) [Per J. Zaldivar, Second Division].
[52]

Second Division].
 Id. at 563–565.
[53]

 Id.
[40]

 Id. at 567–568.
[54]

 Rebollido v. Court of Appeals, 252 Phil. 831, 839 (1989) [Per J.

[41]

Gutierrez, Jr., Third Division], citing Lee et al. v. Romillo, Jr., 244  See Re: Request of the Plaintiffs, Heirs of the Passengers of the
[55]

Phil. 606, 612 (1988) [Per J. Gutierrez, Jr., Third Division].
 RULES OF CIVIL PROCEDURE, Rule 3, sec. 3.
[42]
Doña Paz to Set Aside the Order dated January 4, 1988 of Judge
B.D. Chingcuangco, A.M. No. 88-1-646-0, March 3, 1988, 159
SCRA 623, 627 [En Banc].

 Ang, represented by Aceron v. Spouses Ang, G.R. No. 186993,

[43]
 Id.
[56]

August 22, 2012, 678 SCRA 699, 709 [Per J. Reyes, Second
Division].  J. E. STIGLITZ, ECONOMICS OF THE PUBLIC SECTOR 215
[57]
(3rd ed., 2000).  Id.
[73]

 A.M. No. 88-1-646-0, March 3, 1988, 159 SCRA 623, 627 [En
[58]
 Id.
[74]

Banc].
 Id. at 6.
[75]

 Id. at 627.
[59]

 Id.
[76]

 ANNOTATION TO THE RULES OF PROCEDURE FOR

[60]

ENVIRONMENTAL CASES, p. 133.  Id.

[77]

 Id.
[61]
 Id.
[78]

 Id.
[62]
 Id.
[79]

 Rollo, p. 5.
[63]
 Id.
[80]

 Id.
[64]
 Id.
[81]

 Id.
[65]
 ANNOTATION TO THE RULES OF PROCEDURE FOR
[82]

ENVIRONMENTAL CASES, p. 113.

 Id. at 6.
[66]

 Id. at 114.
[83]

 Id.
[67]

 Rollo, p. 164.
[84]

 Id.
[68]

 Id.
[85]

 Id. at 7.
[69]

 Id. at 161.
[86]

 Id.
[70]

 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,

[87]

 Id. at 5.
[71]
21 (4) EUR J INT LAW 853-881, 854 (2011) .

 Id.
[72]
 G.R. No. 159402, February 23, 2011, 644 SCRA 36 [Per J.
[88]

Bersamin, Third Division].

  See D. Kennedy, The Sources of International Law, 2 (1)
[101]

 Id. at 42.
[89]
American University Int Law Review, 1-96  (1987).

 CONST. (1987), art. II, sec. 2.

[90]
 VIENNA CONVENTION ON THE LAW OF TREATIES
[102]

(1961), art. 2(1)(a) .

 Unless the relevant treaty provision simply articulates an existing
[91]

international customary norm in which case it will be arguably  E. Posner and Jack L. Goldsmith, A Theory of Customary
[103]

incorporated through Article II, Section 2 of the Constitution also. International Law (John M. Olin Program in Law and Economics
Working Paper No. 63, 1998). See also M. Panezi, Sources of Law in
 452 Phil. 1100 (2003) [Per J. Azcuna, En Banc].
[92]
Transition: Re-visiting general principles of International
Law, Ancilla Juris, . See also RESTATEMENT (THIRD) OF
 Id. at 1107.
[93]
FOREIGN RELATIONS LAW (1987), sec. 102(2).

 Const. (1987), art. II, sec. 2 states, “The Philippines renounces

[94]
 E. Posner and Jack L. Goldsmith, A Theory of Customary
[104]

war as an instrument of national policy, adopts the generally International Law 70 (John M. Olin Program in Law and Economics
accepted principles of international law as part of the law of the Working Paper No. 63, 1998). See also, E. Lauterpacht, International
land and adheres to the policy of peace, equality, justice, freedom, LAW BEING THE COLLECTED PAPERS OF HERSCH
cooperation, and amity with all nations.” LAUTERPACHT, Vol. I, The General Works.

 Republic of Indonesia v. Vinzon, 452 Phil. 1100, 1107 (2003) [Per

[95]
 J. Finke, Sovereign Immunity: Rule, Comity or Something
[105]

J. Azcuna, En Banc]. Else?, 21 (4) Eur J Int Law 853-881, 857 (2011) .

 J. Finke, Sovereign Immunity: Rule, Comity or Something

[96]
 COUNCIL OF EUROPE - EXPLANATORY REPORT ON THE
[106]

Else?, 21 (4) Eur J Int Law 853-881, 854 (2011) . EUROPEAN CONVENTION ON STATE IMMUNITY (ETS No.
074), .
 Id. at 856.
[97]

 Id.
[107]

 Id.
[98]

 December 2, 2004.
[108]

 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,

[99]

21 (4) EUR J INT LAW 856-857 (2011) .  The Philippines is not a signatory to the Convention.
[109]

[100]
 Available at .  See art. 30 of Convention.
[110]
  Status according to the UN Treaty Collection as of 07-17-2014, .
[111]
 Id. at 4.
[124]

 UN CONVENTION ON JURISDICTIONAL IMMUNITIES OF

[112]
 J. Paul, The Transformation of International Comity (2008) .
[125]

STATES AND THEIR PROPERTIES, preamble.

 Id. at 27.
[126]

 W. Nagan and J. L. Root, The Emerging Restrictions on

[113]

Sovereign Immunity: Peremptory Norms of International Law, the  396 Phil. 623, 646 (2000) [Per J. Buena, En Banc].
[127]

UN Charter, and the Application of Modern Communications

Theory, 38 N.C. J. Int'l L. & Comm. Reg. 375 (2013) .  Id. at 666.
[128]

 Id. at 60–61.
[114]
 E. Posner and J. L. Goldsmith, A Theory of Customary
[129]

International Law (John M. Olin Program in Law and Economics

 M. E. Wiesinger, State Immunity from Enforcement
[115]
Working Paper No. 63) 5 (1998).
Measures (2006) .
 W. P. Nagan and J. L. Root, The Emerging Restrictions on
[130]

 Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011, 641

[116]
Foreign Immunity: Peremptory Norms of International Law, the UN
SCRA 244 [Per J. Velasco, Jr., En Banc]. Charter, and the Application of Modern Communications Theory, 38
N.C. J. Int'l L. & Comm. Reg. 375 (2013) .
 Id. at 258–260.
[117]

 Id. at 4.
[131]

 396 Phil. 623 (2000) [Per J. Buena, En Banc].

[118]

 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW.

[132]

 Id. at 637.
[119]

 Id. at 38.
[133]

 Id. at 656.
[120]

 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,

[134]

 Id. at 657–660.
[121]
21 (4) Eur J Int Law 853-881, 856 (2011) .

 M. J. Garcia (Legislative Attorney), International Law and

[122]
 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,
[135]

Agreements: their effect upon US law, CONGRESSIONAL 21 (4) Eur J Int Law 853-881, 871 (2011) .
RESEARCH SERVICE 7-5700 RL32528 (2014), .
 J. K. Elsea and S. V. Yousef, The Foreign Sovereign Immunities
[136]

 Id.
[123]
Act (FSIA) and Foreign Officials, CONGRESSIONAL RESEARCH
SERVICE 7-5700 (2013).

 UNITED KINGDOM STATE IMMUNITY ACT of 1978, part I,
[137]
2--(1) provides: "A State is not immune as respects proceedings in
respect of which it has submitted to the jurisdiction of the courts of
the United Kingdom."
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[138]
I, 3--(1) provides: " A State is not immune as respects proceedings
relating to—(a) a commercial transaction entered into by the State;
or (b) an obligation of the State which by virtue of a contract
(whether a commercial transaction or not) falls to be performed
wholly or partly in the United Kingdom.
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[139]
I, 4--(1) provides: " A State is not immune as respects proceedings
relating to a contract of employment between the State and an
individual where the contract was made in the United Kingdom or
the work is to be wholly or partly performed there."
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[140]
I, 5--(1) provides: "A State is not immune as respects proceedings in
respect of—(a) death or personal injury; or (b) damage to or loss of
tangible property,caused by an act or omission in the United
Kingdom."
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[141]
I, 6--(1) provides:  "A State is not immune as respects proceedings
relating to—(a) any interest of the State in, or its possession or use
of, immovable property in the United Kingdom; or (b)any obligation
of the State arising out of its interest in, or its possession or use of,
any such property.
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[142]
I, 7--(1) provides: A State is not immune as respects proceedings
relating to—(a) any patent, trade-mark, design or plant breeders’
rights belonging to the State and registered or protected in the United
Kingdom or for which the State has applied in the United Kingdom;
(b)an alleged infringement by the State in the United Kingdom of
any patent, trade-mark, design, plant breeders’ rights or copyright; or
(c)the right to use a trade or business name in the United Kingdom.
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[143]
I, 8--(1) provides: A State is not immune as respects proceedings
relating to its membership of a body corporate, an unincorporated
body or a partnership which— (a) has members other than States;
and (b) is incorporated or constituted under the law of the United
Kingdom or is controlled from or has its principal place of business
in the United Kingdom,being proceedings arising between the State
and the body or its other members or, as the case may be, between
the State and the other partners.
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[144]
I, 9--(1) provides: Where a State has agreed in writing to submit a
dispute which has arisen, or may arise, to arbitration, the State is not
immune as respects proceedings in the courts of the United Kingdom
which relate to the arbitration.
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[145]
I, 10--(2) provides: A State is not immune as respects— (a) an action
in rem against a ship belonging to that State; or (b) an action in
personam for enforcing a claim in connection with such a ship
 UNITED KINGDOM STATE IMMUNITY ACT OF 1978, part
[146]
I, 11--(1) provides: A State is not immune as respects proceedings
relating to its liability for—(a) value added tax, any duty of customs
or excise or any agricultural levy; or (b)rates in respect of premises
occupied by it for commercial purposes.
  Part II of the law provides for the following exceptions: (a)
[147]
 Id. at par. 56.
[159]

submission to jurisdiction; (b) commercial transactions; (c) contracts

of employment; (d) personal injury and damage to property; (e)  Id. at par. 94.
[160]

ownership, possession, and use of property, etc.; (f) copyright,

patents, trade marks, etc., (g) membership of bodies corporate etc.;  Id. at par. 95.
[161]

(h) arbitrations; (i) actions in rem; (j) bills of exchange; and (k)
taxes.  Id. at par. 108.
[162]

 Jurisdictional Immunities of the State (Germany v.

[148]
 J. Finke, Sovereign Immunity: Rule, Comity or Something
[163]

Italy) (2012) ; See also P. B. Stephan, Sovereign Immunity and the Else?, 21 (4) Eur J Int Law 853-881, 872 (2011) .
International Court of Justice: The State System
Triumphant, VIRGINIA PUBLIC LAW AND LEGAL THEORY  J. Finke, Sovereign Immunity: Rule, Comity or Something
[164]

RESEARCH PAPER NO. 2012-47 (2012). Else?, 21 (4) Eur J Int Law 853-881, 872 (2011) .

 Id. at pars. 27–29.

[149]
 M. Panezi, Sources of Law in Transition: Re-visiting general
[165]

principles of International Law, Ancilla Juris 71 (2007) .

 Id.
[150]

 J. Finke, Sovereign Immunity: Rule, Comity or Something

[166]

 Id. at par. 37.

[151]
Else?, 21 (4) Eur J Int Law 853-881, 874 (2011) .

 Id.
[152]
 J. Finke, Sovereign Immunity: Rule, Comity or Something
[167]

Else?, 21 (4) Eur J Int Law 853-881, 853 (2011) .

 Id. at par. 79.
[153]

 N. J. Shmalo, Is the Restrictive Theory of Sovereign Immunity

[168]

 Id. at pars. 55–57.

[154]
Workable? Government Immunity and Liability, 17 (3)
INTERNATIONAL STANFORD LAW REVIEW (1965) 501-507.
 Id. at par. 60.
[155]

 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,

[169]

 Id. at pars. 82–95.

[156]
21 (4) Eur J Int Law 853-881, 858 (2011) .

 Id. at par. 26.

[157]
 J. Finke, Sovereign Immunity: Rule, Comity or Something
[170]

Else?, 21 (4) Eur J Int Law 853-881, 859 (2011) .

 Id.
[158]

 452 Phil. 1100, 1107 (2003) [Per J. Azcuna, En Banc].

[171]
  Id.
[172]
 Id. at 370.
[187]

 G.R. No. 108813, December 15, 1994, 239 SCRA 224 [Per J.
[173]
 Id.
[188]

Puno, Second Division].

 J. Finke, Sovereign Immunity: Rule, Comity or Something Else?,
[189]

 Id. at 230–232.
[174]
21 (4) Eur J Int Law 853-881, 878 (2011) .

 221 Phil. 179 (1985) [Per J. Abad Santos, En Banc].

[175]

 Id. at 184.
[176]

Batas.org 
 G.R. No. 108813, December 15, 1994, 239 SCRA 224, 233 [Per
[177]

J. Puno, Second Division].

 273 Phil. 56 (1991) [Per J. Medialdea, First Division].

[178]

 Id. at 62.
[179]

 Id.
[180]

 144 Phil. 257 (1970) [Per J. Zaldivar, En Banc].

[181]

 Id. at 267–268.
[182]

 G.R. No. 90314, November 27, 1990, 191 SCRA 713 [Per J.
[183]

Regalado, Second Division].

 Id. at 727.
[184]

 271 Phil. 293 (1991) [Per J. Gutierrez, Jr., En Banc].

[185]

 G.R. No. 74135, May 28, 1992, 209 SCRA 357 [Per J. Gutierrez,
[186]

Jr., Third Division].


FIRST DIVISION
G.R. No. 212448, January 11, 2018
AAA,[*] PETITIONER, V. BBB,[*] RESPONDENT.
DECISION
TIJAM, J.:
May Philippine courts exercise jurisdiction over an
offense constituting psychological violence under
Republic Act (R.A.) No. 9262,[1] otherwise known as
the Anti-Violence Against Women and their Children
Act of 2004, committed through marital infidelity,
when the alleged illicit relationship occurred or is
occurring outside the country?
The above question is addressed to this Court in the
present Petition[2] for the issuance of a writ
of certiorari  under Rule 45 of the Rules of Court, to
nullify the Resolutions dated February 24, 2014[3] and
May 2, 2014[4] of the Regional Trial Court (RTC) of
Pasig City, Branch 158, in Criminal Case No. 146468.
The assailed resolutions granted the motion to quash
the Information[5]which charged respondent BBB under
Section 5(i) of R.A. No. 9262, committed as follows:
On or about April 19, 2011, in Pasig City, and within
the jurisdiction of this Honorable Court, [BBB], being
then legally married to [AAA], caused herein [AAA]
mental and emotional anguish by having an illicit
relationship with a certain Lisel Mok as confirmed by
his photograph with his purported paramour Lisel Mok
and her children and the e-mailed letter by his mother
mentioning about the said relationship, to the damage
and prejudice of [AAA], in violation of the aforecited
law.
Contrary to law.
We briefly recount the antecedents.
Petitioner AAA and BBB were married on August 1,
2006 in Quezon City. Their union produced two
children: CCC was born on March 4, 2007 and DDD on
October 1, 2009.[6]
In May of 2007, BBB started working in Singapore as a
chef, where he acquired permanent resident status in
September of 2008. This petition nonetheless indicates
his address to be in Quezon City where his parents
reside and where AAA also resided from the time they
were married until March of 2010, when AAA and their
children moved back to her parents' house in Pasig
City.[7]
AAA claimed, albeit not reflected in the Information,
that BBB sent little to no financial support, and only
sporadically. This allegedly compelled her to fly extra
hours and take on additional jobs to augment her
income as a flight attendant. There were also
allegations of virtual abandonment, mistreatment of
her and their son CCC, and physical and sexual
violence. To make matters worse, BBB supposedly
started having an affair with a Singaporean woman
named Lisel Mok with whom he allegedly has been
living in Singapore. Things came to a head on April 19,
2011 when AAA and BBB had a violent altercation at a
hotel room in Singapore during her visit with their
kids.[8] As can be gathered from the earlier cited
Information, despite the claims of varied forms of
abuses, the investigating prosecutor found sufficient
basis to charge BBB with causing AAA mental and
emotional anguish through his alleged marital
infidelity.[9]
The Information having been filed, a warrant of arrest
was issued against BBB. AAA was also able to secure a
Hold-Departure Order against BBB who continued to
evade the warrant of arrest. Consequently, the case
was archived. [10]
On November 6, 2013, an Entry of Appearance as
Counsel for the Accused With Omnibus Motion to
Revive Case, Quash Information, Lift Hold Departure
Order and Warrant of Arrest[11] was filed on behalf of
BBB. Granting the motion to quash on the ground of
lack of jurisdiction and thereby dismissing the case,
the trial court reasoned:
Here, while the Court maintains its 28 October 2011
ruling that probable cause exists in this case and that
[BBB] is probably guilty of the crime charged,
considering, however, his subsequent clear showing
that the acts complained of him had occurred in
Singapore, dismissal of this case is proper since the
Court enjoys no jurisdiction over the offense charged,
it having transpired outside the territorial jurisdiction
of this Court.
xxxx
The Court is not convinced by the prosecution's
argument that since [AAA] has been suffering from
mental and emotional anguish "wherever she goes",
jurisdiction over the offense attaches to this Court
notwithstanding that the acts resulting in said
suffering had happened outside of the Philippines. To
the mind of the Court, with it noting that there is still
as yet no jurisprudence on this score considering
that Republic Act 9262 is relatively a new law, the
act itself which had caused a woman to suffer mental
or emotional anguish must have occurred within the
territorial limits of the Court for it to enjoy jurisdiction
over the offense. This amply explains the use of the
emphatic word "causing" in the provisions of Section
5(i), above, which denotes the bringing about or into
existence of something. Hence, the mental or
emotional anguish suffered by a woman must have
been brought about or into existence by a criminal act
which must logically have occurred within the
territorial limits of the Court for jurisdiction over the
offense to attach to it. To rule otherwise would violate
or render nugatory one of the basic characteristics of
our criminal laws - territoriality.
In the listing provided in the law itself - "repeated
verbal and emotional abuse, and denial of financial
support or custody of minor children of (sic) access to
the woman's child/children"- it becomes clear that
there must be an act which causes the "mental or
emotional anguish, public ridicule or humiliation", and
it is such act which partakes of a criminal nature.
Here, such act was the alleged maintenance of "an
illicit relationship with a certain Liesel Mok" which has
been conceded to have been committed in Singapore.
Granting, without conceding, that the law presents
ambiguities as written, quashal of the Information
must still be ordered following the underlying
fundamental principle that all doubts must be resolved
in favor of [BBB]. At best, the Court draws the
attention of Congress to the arguments on jurisdiction
spawned by the law.[12] (Emphasis in the original)
Aggrieved by the denial of the prosecution’s motion for
reconsideration of the dismissal of the case, AAA
sought direct recourse to this Court via the instant
petition on a pure question of law. AAA posits that
R.A. No. 9262 is in danger of becoming transmogrified
into a weak, wobbly, and worthless law because with
the court a quo's ruling, it is as if husbands of Filipino
women have been given license to enter into extra-
marital affairs without fear of any consequence, as
long as they are carried out abroad. In the main, AAA
argues that mental and emotional anguish is an
essential element of the offense charged against BBB,
which is experienced by her wherever she goes, and
not only in Singapore where the extra-marital affair
takes place; thus, the RTC of Pasig City where she
resides can take cognizance of the case.
In support of her theory, AAA draws attention to
Section 7 of R.A. No. 9262, which provides:
Sec. 7. Venue - The Regional Trial Court designated as
a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and
their children under this law. In the absence of such
court in the place where the offense was committed,
the case shall be filed in the Regional Trial Court
where the crime or any of its elements was
committed at the option of the complainant.
(Emphasis ours)
As to the ambiguity in the law hypothetically referred
to in the assailed order, AAA directs us to:
Section 4. Construction. - This Act shall be liberally
construed to promote the protection and safety of
victims of violence against women and their children.
In his Comment[13] filed on January 20, 2015, BBB
contends that the grant of the motion to quash is in
effect an acquittal; that only the civil aspect of a
criminal case may be appealed by the private offended
party; and. that this petition should be dismissed
outright for having been brought before this Court by
AAA instead of the Office of the Solicitor General
(OSG) as counsel for the People in appellate
proceedings. BBB furthermore avers that the petition
was belatedly filed.
We tackle first the threshold issue of whether or not
this Court should entertain the petition.
It must be stated beforehand that BBB is plainly
mistaken in asserting that the instant petition was
belatedly filed. The date erroneously perceived by BBB
as the date of AAA's Motion for Extension[14] was filed -
June 2, 2014 - refers to the date of receipt by the
Division Clerk of Court and not the date when the said
motion was lodged before this Court. The motion was
in fact filed on May 27, 2014, well within the period
that AAA had under the Rules of Court to file the
intended petition. Thus, considering the timeliness of
the motion, this Court in a Resolution[15]dated June 9,
2014, granted AAA an additional period of thirty (30)
days or until June 26, 2014 to file a petition for
review.
In AAA's motion for extension of time, it was
mentioned that she was awaiting the OSG's response
to her Letter[16] dated May 26, 2014 requesting for
representation. Since, the OSG was unresponsive to
her plea for assistance in filing the intended petition,
AAA filed the present petition in her own name before
the lapse of the extension given her by this Court or
on June 25, 2014.
We find that under the circumstances, the ends of
substantial justice will be better served by entertaining
the petition if only to resolve the question of law
lodged before this Court. In Morillo v. People of the
Philippines, et al.,[17] where the Court entertained a
Rule 45 petition which raised only a question of law
filed by the private offended party in the absence of
the OSG's participation, we recalled the instances
when the Court permitted an offended party to file an
appeal without the intervention of the OSG. One such
instance is when the interest of substantial justice so
requires.[18]
Morillo,[19] also differentiated between dismissal and
acquittal, thus:
Acquittal is always based on the merits, that is,
the defendant is acquitted because the evidence
does not show that defendant's guilt is beyond a
reasonable doubt; but dismissal does not decide
the case on the merits or that the defendant is
not guilty. Dismissal terminates the proceeding,
either because the court is not a court of
competent jurisdiction, or the evidence does not
show that the offense was committed within the
territorial jurisdiction of the court, or the
complaint or information is not valid or sufficient
in form and substance, etc. The only case in which
the word dismissal is commonly but not correctly
used, instead of the proper term acquittal, is when,
after the prosecution has presented all its evidence,
the defendant moves for the dismissal and the court
dismisses the case on the ground that the evidence
fails to show beyond a reasonable doubt that the
defendant is guilty; for in such case the dismissal is in
reality an acquittal because the case is decided on the
merits. If the prosecution fails to prove that the
offense was committed within the territorial
jurisdiction of the court and the case is
dismissed, the dismissal is not an acquittal,
inasmuch as if it were so the defendant could not
be again prosecuted before the court of
competent jurisdiction; and it is elemental that
in such case, the defendant may again be
prosecuted for the same offense before a court
of competent jurisdiction.[20] (Citation omitted and
emphasis in the original)
The grant of BBB's motion to quash may not therefore
be viewed as an acquittal, which in limited instances
may only be repudiated by a petition
for certiorari  under Rule 65 upon showing grave abuse
of discretion lest the accused would be twice placed in
jeopardy.[21]
Indubitably, "the Rules do not prohibit any of the
parties from filing a Rule 45 Petition with this Court, in
case only questions of law are raised or
involved."[22] "There is a question of law when the
issue does not call for an examination of the probative
value of the evidence presented or of the truth or
falsehood of the facts being admitted, and the doubt
concerns the correct application of law and
jurisprudence on the matter."[23]
Further, the question of whether or not the RTC has
jurisdiction in view of the peculiar provisions of R.A.
No. 9262 is a question of law. Thus, in Morillo,[24] the
Court reiterated that:
[T]he jurisdiction of the court is determined by the
averments of the complaint or Information, in relation
to the law prevailing at the time of the filing of the
complaint or Information, and the penalty provided by
law for the crime charged at the time of its
commission. Thus, when a case involves a proper
interpretation of the rules and jurisprudence with
respect to the jurisdiction of courts to entertain
complaints filed therewith, it deals with a question of
law that can be properly brought to this Court under
Rule 45.[25] (Citations omitted)
We are not called upon in this case to determine the
truth or falsity of the charge against BBB, much less
weigh the evidence, especially as the case had not
even proceeded to a full-blown trial on the merits. The
issue for resolution concerns the correct application of
law and jurisprudence on a given set of
circumstances, i.e., whether or not Philippine courts
are deprived of territorial jurisdiction over a criminal
charge of psychological abuse under R.A. No. 9262
when committed through marital infidelity and the
alleged illicit relationship took place outside the
Philippines.
The novelty of the issue was even recognized by the
RTC when it opined that there is still as yet no
jurisprudence on this score, prompting it to quash the
Information even as it maintained its earlier October
28, 2011 ruling that probable cause exists in the case.
[26]
 Calling the attention of Congress to the arguments
on jurisdiction spawned by the law,[27] the RTC
furnished copies of the assailed order to the House of
Representatives and the Philippine Senate through the
Committee on Youth, Women and Public Relations, as
well as the Committee on Justice and Human Rights.
[28]
The issue acquires special significance when viewed
against the present economic reality that a great
number of Filipino families have at least one parent
working overseas. In April to September 2016, the
number of overseas Filipino workers who worked
abroad was estimated at 2.2 million, 97.5 percent of
which were comprised of overseas contract workers or
those with existing work contract; while 2.5 percent
worked overseas without contract.[29] It is thus
necessary to clarify how R.A. No. 9262 should be
applied in a question of territorial jurisdiction over a
case of psychological abuse brought against the
husband when such is allegedly caused by marital
infidelity carried on abroad.
Ruling of the Court
There is merit in the petition.
"Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social
and economic isolation of women, is also
common."[30] In this regard, Section 3 of R.A. No. 9262
made it a point to encompass in a non-limiting manner
the various forms of violence that may be committed
against women and their children:
Sec. 3. Definition of Terms.- As used in this Act,
(a) "Violence against women and their children" refers
to any act or a series of acts committed by any
person against a woman who is his wife, former wife,
or against a woman with whom the person has or had
a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate
or illegitimate, within or without the family
abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts,
battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to,
the following acts:
A. "Physical Violence" refers to acts that include bodily
or physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to:
xxxx
C. "Psychological violence" refers to acts or
omissions causing or likely to cause mental or
emotional suffering of the victim such as but not
limited to intimidation, harassment, stalking, damage
to property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical,
sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury
to pets or to unlawful or unwanted deprivation of the
right to custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or
attempt to make a woman financially dependent which
includes, but is not limited to the following:
xxxx
As jurisdiction of a court over the criminal ease is
determined by the allegations in the complaint or
information, threshing out the essential elements of
psychological abuse under R.A. No. 9262 is crucial.
In Dinamling v. People,[31] this Court already had
occasion to enumerate the elements of psychological
violence under Section 5(i) of R.A. No. 9262, as
follows:
Section 5. Acts of Violence Against Women and Their
Children. - The crime of violence against women and
their children is committed through any of the
following acts:
xxxx
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not
limited to, repeated verbal and emotional abuse, and denial of
financial support or custody of minor children or access to the
woman's child/children.
From the aforequoted Section 5(i), in relation to other
sections of R[.]A[.] No. 9262, the elements of the
crime are derived as follows:
(1) The offended party is a woman and/or her child or children;
   
(2) The woman is either the wife or former wife of the offender, or
is a woman with whom the offender has or had a sexual or
dating relationship, or is a woman with whom such offender
has a common child. As for the woman's child or children, they
may be legitimate or illegitimate, or living within or without the
family abode;
   
(3) The offender causes on the woman and/or child mental or
emotional anguish; and
   
(4) The anguish is caused through acts of public ridicule or
humiliation, repeated verbal and emotional abuse, denial of
financial support or custody of minor children or access to the
children or similar such acts or omissions.
xxxx
It bears emphasis that Section 5(i) penalizes some
forms of psychological violence that are inflicted
on victims who are women and children. Other forms
of psychological violence, as well as physical, sexual
and economic violence, are addressed and penalized in
other sub- parts of Section 5.
xxxx
Psychological violence is an element of violation
of Section 5(i) just like the mental or emotional
anguish caused on the victim. Psychological
violence is the means employed by the
perpetrator, while mental or emotional anguish
is the effect caused to or the damage sustained
by the offended party. To establish psychological
violence as an element of the crime, it is necessary to
show proof of commission of any of the acts
enumerated in Section 5(i) or similar such acts. And to
establish mental or emotional anguish, it is necessary
to present the testimony of the victim as such
experiences are personal to this party. x x x.
[32]
 (Citations omitted and emphasis ours)
Contrary to the interpretation of the RTC, what R.A.
No. 9262 criminalizes is not the marital infidelity per
se  but the psychological violence causing mental or
emotional suffering on the wife. Otherwise stated, it is
the violence inflicted under the said circumstances
that the law seeks to outlaw. Marital infidelity as cited
in the law is only one of the various acts by which
psychological violence may be committed. Moreover,
depending on the circumstances of the spouses and
for a myriad of reasons, the illicit relationship may or
may not even be causing mental or emotional anguish
on the wife. Thus, the mental or emotional suffering of
the victim is an essential and distinct element in the
commission of the offense.
In criminal cases, venue is jurisdictional. Thus,
in  Treñas v. People,[33] the Court explained that:
The place where the crime was committed
determines not only the venue of the action but
is an essential element of jurisdiction. It is a
fundamental rule that for jurisdiction to be acquired by
courts in criminal cases, the offense should have been
committed or any one of its essential ingredients
should have taken place within the territorial
jurisdiction of the court. Territorial jurisdiction in
criminal cases is the territory where the court has
jurisdiction to take cognizance or to try the offense
allegedly committed therein by the accused. Thus, it
cannot take jurisdiction over a person charged with an
offense allegedly committed outside of that limited
territory. Furthermore, the jurisdiction of a court
over the criminal case is determined by the
allegations in the complaint or information. And
once it is so shown, the court may validly take
cognizance of the case. However, if the evidence
adduced during the trial shows that the offense
was committed somewhere else, the court
should dismiss the action for want of
jurisdiction.[34] (Emphasis in the original)
In Section 7 of R.A. No. 9262, venue undoubtedly
pertains to jurisdiction. As correctly pointed out by
AAA, Section 7 provides that the case may be filed
where the crime or any of its elements was committed
at the option of the complainant. While the
psychological violence as the means employed by the
perpetrator is certainly an indispensable element of
the offense, equally essential also is the element of
mental or emotional anguish which is personal to the
complainant. The resulting mental or emotional
anguish is analogous to the indispensable element of
damage in a prosecution for estafa, viz:
The circumstance that the deceitful manipulations or
false pretenses employed by the accused, as shown in
the vouchers, might have been perpetrated in Quezon
City does not preclude the institution of the criminal
action in Mandaluyong where the damage was
consummated. Deceit and damage are the basic
elements of estafa.
The estafa involved in this case appears to be a
transitory or continuing offense. It could be filed either
in Quezon City or in Rizal. The theory is that a person
charged with a transitory offense may be tried in any
jurisdiction where the offense is in part committed. In
transitory or continuing offenses in which some acts
material and essential to the crime and requisite to its
consummation occur in one province and some in
another, the court of either province has jurisdiction to
try the case, it being understood that the first court
taking cognizance of the case will exclude the others x
x x[.][35]
What may be gleaned from Section 7 of R.A. No. 9262
is that the law contemplates that acts of violence
against women and their children may manifest as
transitory or continuing crimes; meaning that some
acts material and essential thereto and requisite in
their consummation occur in one municipality or
territory, while some occur in another. In such cases,
the court wherein any of the crime's essential and
material acts have been committed maintains
jurisdiction to try the case; it being understood that
the first court taking cognizance of the same excludes
the other. Thus, a person charged with a continuing or
transitory crime may be validly tried in any
municipality or territory where the offense was in part
committed.[36]
It is necessary, for Philippine courts to have
jurisdiction when the abusive conduct or act of
violence under Section 5(i) of R.A. No. 9262 in relation
to Section 3(a), Paragraph (C) was committed outside
Philippine territory, that the victim be a resident of the
place where the complaint is filed in view of the
anguish suffered being a material element of the
offense. In the present scenario, the offended wife and
children of respondent husband are residents of Pasig
City since March of 2010. Hence, the RTC of Pasig City
may exercise jurisdiction over the case.
Certainly, the act causing psychological violence which
under the information relates to BBB's marital
infidelity must be proven by probable cause for the
purpose of formally charging the husband, and to
establish the same beyond reasonable doubt for
purposes of conviction. It likewise remains imperative
to acquire jurisdiction over the husband. What this
case concerns itself is simply whether or not a
complaint for psychological abuse under R.A. No. 9262
may even be filed within the Philippines if the illicit
relationship is conducted abroad. We say that even if
the alleged extra marital affair causing the offended
wife mental and emotional anguish is committed
abroad, the same does not place a prosecution under
R.A. No. 9262 absolutely beyond the reach of
Philippine courts.
IN VIEW OF THE FOREGOING, the petition
is GRANTED. The Resolutions dated February 24,
2014 and May 2, 2014 of the Regional Trial Court of
Pasig City, Branch 158, in Criminal Case No. 146468
are SET ASIDE. Accordingly, the Information filed in
Criminal Case No. 146468 is ordered REINSTATED.
SO ORDERED.
 [4]
Sereno, C.J., (Chairperson), Leonardo-De Castro, Del  Id. at 53.
Castillo, and Jardeleza, JJ., concur. 
[5]
 Id. at 4 and 26.

[6]
[*]  Id. at 57.
 Section 44 of Republic Act No. 9262 (Anti Violence
Against Women and Their Children Act of 2004) [7]
 Id. at 57-58.
requires the confidentiality of all records pertaining to
cases of violence against women and their children. [8]
 Id. at 58-59.
Per said section, all public officers and employees are
prohibited from publishing or causing to be published [9]
 Id. at 26.
in any format the name and other identifying
information of a victim or an immediate family [10]
 Id. at 27.
member. The penalty of one (1) year imprisonment
and a fine of not more than Five Hundred Thousand [11]
 Id. at 49.
pesos (P500,000.00) shall be imposed upon those who
[12]
violate the provision. Pursuant thereto, in the courts'  Id. at 50-51.
promulgation of decisions, final resolutions and/or final
[13]
orders, the names of women and children victims shall  Id. at 154-160.
be replaced by fictitious initials, and their personal
[14]
circumstances or any information, which tend to  Id. at 3-6.
identify them, shall likewise not be disclosed. [15]
 Id. at 17-A.
[1]
 AN ACT DEFINING VIOLENCE AGAINST WOMEN [16]
AND THEIR CHILDREN, PROVIDING FOR PROTECTIVE  Id. at 15-17.
MEASURES FOR VICTIMS, PRESCRIBING PENALTIES [17]
THEREFORE, AND FOR OTHER PURPOSES. Approved  775 Phil. 192 (2015).
on March 8, 2004. [18]
 Id. at 215-216.
[2]
 Rollo, pp. 19-45. [19]
 Morillo v. People, et al., supra.
[3]
 Rendered by Presiding Judge Maria Rowena [20]
Modesto-San Pedro; id. at 49-52.  Id. at 212, citing People v. Salico, 84 Phil. 722,
732-733 (1949).
[21] [35]
 Id. at 211.  Tuzon v. Judge Cruz, 160 Phil. 925, 929 (1975).

[22] [36]
 Del Socorro v. Van Wilsem, 749 Phil. 823,832  Morillo v. People, supra note 17, at 206.
(2014), citing Rep. of the Phils., et al. v. Sunvar
Realty Development Corp., 688 Phil. 616, 630 (2012).

[23]
 Id. at 832.

[24]
Batas.org
 Morillo v. People, et al., supra.

[25]
 Id. at 214.

[26]
 Rollo, p. 50.

[27]
 Id. at 51.

[28]
 Id. at 52.

[29]
 < https://psa.gov.ph/content/total-number-ofws-
estimated-22-million-results-2016-surveyoverseas-
filipinos > (visited October 30, 2017).

[30]
 Garcia v. Judge Drilon, et al., 712 Phil. 44, 94
(2013).

[31]
 761 Phil. 356 (2015).

[32]
 Id. at 372-376.

[33]
 680 Phil. 368 (2012).

[34]
 Id. at 380, citing Isip v. People, 552 Phil. 786, 801-
802 (2007).
 Supreme Court of the Philippines
232 Phil. 615  instead; and
EN BANC
G.R. No. 74457, March 20, 1987
RESTITUTO YNOT, PETITIONER, VS. INTERMEDIATE
APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO,
ILOILO AND THE REGIONAL DIRECTOR, BUREAU OF
ANIMAL INDUSTRY, REGION IV, ILOILO CITY,
RESPONDENTS.  purpose and no carabeef shall be transported from one province to
DECISION
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades:  "Strike — but hear me first!" It is this
cry that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
"WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order
No. 626 particularly with respect to age;
"WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against
interprovincial movement of carabaos by transporting carabeef
"WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation.
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
"SECTION 1.  Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
another.  The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable
institutions and other similar institutions as the Chairman of the
National Meat Inspection Commission may see fit, in the case of
carabeef, and to deserving farmers through dispersal as the Director
of Animal Industry may see fit, in the case of carabaos.
"SECTION 2.  This Executive Order shall take effect immediately.
"Done in the City of Manila, this 25th day of October, in the year of
Our Lord, nineteen hundred and eighty.
(SGD.)
    FERDINAND E.
MARCOS
     President
Republic of the
   
Philippines"
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated
by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure.[1] The petitioner sued for recovery,
and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeasbond of P12,000.00.  jurisdiction under the Constitution to "review, revise, reverse,
After considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond.  The court also
declined to rule on the constitutionality of the executive order, as
raised by the petitioner, for lack of authority and also for its
presumed validity.[2]
The petitioner appealed the decision to the Intermediate Appellate
Court,[*] [3] which upheld the trial court,[**] and he has now come
before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries.  is questioned.  On the contrary, they should probe the issue more
His claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and
impartial court as guaranteed by due process.  He complains that the
measure should not have been presumed, and so sustained, as
constitutional.  There is also a challenge to the improper exercise of
the legislative power by the former President under Amendment No.
6 of the 1973 Constitution.[4]
While also involving the same executive order, the case of Pesigan
v. Angeles[5] is not applicable here.  The question raised there was the
necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable.  We imposed the
requirement then on the basis of due process of law.  In doing so,
however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. 
That is an entirely different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. [6] We have
modify or affirm on appeal orcertiorari, as the law or rules of court
may provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures.
[7]
 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be
rebutted.  Indeed, if there be a clear showing of their invalidity, and
of the need to declare them so, then "will be the time to make the
hammer fall, and heavily,"[8] to recall Justice Laurel's trenchant
warning.  Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it
deeply, to relieve the abscess, paraphrasing another distinguished
jurist,[9] and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss
of favor, or popular censure, or any other similar inhibition unworthy
of the bench, especially this Court.
The challenged measure is denominated an executive order but it is
really a presidential decree, promulgating a new rule instead of
merely implementing an existing law.  It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6.  It was provided thereunder that whenever
in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable
to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force
and effect of law.  As there is no showing of any exigency to justify
the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order.  for example, would go no farther than to define due process — and
Nevertheless, since the determination of the grounds was supposed
to have been made by the President "in his judgment," a phrase that
will lead to protracted discussion not really necessary at this time, we
reserve resolution of this matter until a more appropriate occasion.  When the barons of England extracted from their sovereign liege the
For the nonce, we confine ourselves to the more fundamental
question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation.  That is
the ideal.  In the case of the due process clause, however, this rule
was deliberately not followed and the wording was purposely kept
ambiguous.  In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was
rejected by Delegate Jose P. Laurel, Chairman of the Committee on
the Bill of Rights, who forcefully argued against it.  He was
sustained by the body.[10]
The due process clause was kept intentionally vague so it would
remain also conveniently resilient.  This was felt necessary because
due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for
all seasons and all persons.  Flexibility must be the best virtue of the
guaranty.  The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in a
legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated.  Instead,
they have preferred to leave the import of the protection open-ended,
as it were, to be "gradually ascertained by the process of inclusion
and exclusion in the course of the decision of cases as they
arise."[11] Thus, Justice Felix Frankfurter of the U.S. Supreme Court,
in so doing sums it all up — as nothing more and nothing less than
"the embodiment of the sporting idea of fair play."[12]
reluctant promise that the Crown would thenceforth not proceed
against the life, liberty or property of any of its subjects except by
the lawful judgment of his peers or the law of the land, they thereby
won for themselves and their progeny that splendid guaranty of
fairness that is now the hallmark of the free society.  The solemn
vow that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the stern
visage of the law, is entitled to have his say in a fair and open
hearing of his cause.
The closed mind has no place in the open society.  It is part of the
sporting idea of fair play to hear "the other side" before an opinion is
formed or a decision is made by those who sit in judgment. 
Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached based
on an informed appreciation of the issues in contention.  It is
indispensable that the two sides complement each other, as unto the
bow the arrow, in leading to the correct ruling after examination of
the problem not from one or the other perspective only but in its
totality.  A judgment based on less that this full appraisal, on the
pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice and
hearing[13] which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official
arbitrariness.  It is a gratifying commentary on our judicial system
that the jurisprudence of this country is rich with applications of this
guaranty as proof of our fealty to the rule of law and the ancient
rudiments of fair play.  We have consistently declared that every
person, faced by the awesome power of the State, is entitled to "the
law of the land," which Daniel Webster described almost two
hundred years ago in the famous Dartmouth College Case, [14] as "the
law which hears before it condemns, which proceeds upon inquiry
and renders judgment only after trial." It has to be so if the rights of
every person are to be secured beyond the reach of officials who, out
of mistaken zeal or plain arrogance, would degrade the due process
clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case
for, to be sure, there are a number of admitted exceptions.  The
conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the fact
ultimately presumed therefrom.[15] There are instances when the need
for expeditious action will justify omission of these requisites, as in
the summary abatement of a nuisance per se, like a mad dog on the
loose, which may be killed on sight because of the immediate danger
it poses to the safety and lives of the people.  Pornographic materials,
contaminated meat and narcotic drugs are inherently pernicious and
may be summarily destroyed.  The passport of a person sought for a
criminal offense may be canceled without hearing, to compel his
return to the country he has fled.[16] Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy
houses to protect the public morals.[17] In such instances, previous
judicial hearing may be omitted without violation of due process in
view of the nature of the property involved or the urgency of the
need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular function of the
police power which both restrains and is restrained by due process. 
The police power is simply defined as the power inherent in the State
to regulate liberty and property for the promotion of the general
welfare.[18] By reason of its function, it extends to all the great public
needs and is described as the most pervasive, the least limitable and
the most demanding of the three inherent powers of the State, far
outpacing taxation and eminent domain.  The individual, as a
member of society, is hemmed in by the police power, which affects
him even before he is born and follows him still after he is dead -
from the womb to beyond the tomb - in practically everything he
does or owns.  Its reach is virtually limitless.  It is a ubiquitous and
often unwelcome intrusion.  Even so, as long as the activity or the
property has some relevance to the public welfare, its regulation
under the police power is not only proper but necessary.  And the
justification is found in the venerable Latin maxims, Salus populi est
suprema lex and Sic utere tuo ut alienum non laedas, which call for
the subordination of individual interests to the benefit of the greater
number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions.  The original measure was issued for the reason,
as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We
affirm at the outset the need for such a measure.  In the face of the
worsening energy crisis and the increased dependence of our farms
on these traditional beasts of burden, the government would have
been remiss, indeed, if it had not taken steps to protect and preserve
them.

A similar prohibition was challenged in United States v. Toribio,
[19]
 where a law regulating the registration, branding and slaughter of
large cattle was claimed to be a deprivation of property without due
process of law.  The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit, and
he appealed to the Supreme Court.  The conviction was affirmed.  Executive Order No. 626.  The method chosen in the basic measure
The law was sustained as a valid police measure to prevent the
indiscriminate killing of carabaos, which were then badly needed by
farmers.  An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in
agricultural output, which in turn had caused an incipient famine.  old if male and eleven years old if female upon issuance of the
Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the registration
and branding of these animals.  The Court held that the questioned
statute was a valid exercise of the police power and declared in part
as follows:
"To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon
individuals.  x x x x x.
"From what has been said, we think it is clear that the enactment of
the provisions of the statute under consideration was required by 'the
interests of the public generally, as distinguished from those of a
particular class' and that the prohibition of the slaughter of carabaos
for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a 'reasonably necessary'
limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire to
enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and
dangerously affected."
In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has a
direct relevance to the public welfare and so is a lawful subject of
is also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the
above-cited doctrine.  There is no doubt that by banning the
slaughter of these animals except where they are at least seven years
necessary permit, the executive order will be conserving those still fit
for farm work or breeding and preventing their improvident
depletion.
But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with
equal certainty that it complies with the second requirement, viz.,
that there be a lawful method.  We note that to strengthen the
original measure, Executive Order No. 626-A imposes an absolute
ban not on the slaughter of the carabaos but on their movement,
providing that "no carabao regardless of age, sex, physical condition
or purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us.  The
reasonable connection between the means employed and the purpose
sought to be achieved by the questioned measure is missing.
We do not see how the prohibition of the interprovincial transport of
carabaos can prevent their indiscriminate slaughter, considering that
they can be killed anywhere, with no less difficulty in one province
than in another.  Obviously, retaining the carabaos in one province
will not prevent their slaughter there, any more than moving them to
another province will make it easier to kill them there.  As for the
carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the
animal.  Perhaps so.  However, if the movement of the live animals
for the purpose of preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit their transfer
as, not to be flippant, dead meat.
Even if a reasonable relation between the means and the end were to
be assumed, we would still have to reckon with the sanction that the
measure applies for violation of the prohibition.  The penalty is
outright confiscation of the carabao or carabeef being transported, to
be meted out by the executive authorities, usually the police only.  In
the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court
after trial and conviction of the accused.  Under the challenged
measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the
police station commander, were returned to the petitioner only after
he had filed a complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon his failure to
produce the carabaos when ordered by the trial court.  The executive
order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright.  see fit" is an extremely generous and dangerous condition, if
The measure struck at once and pounced upon the petitioner without
giving him a chance to be heard, thus denying him the centuriesfold
guaranty of elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the usual
requirement for these minimum guarantees of due process.  It is also
conceded that summary action may be validly taken in administrative
proceedings as procedural due process is not necessarily judicial
only.[20] In the exceptional cases accepted, however, there is a
justification for the omission of the right to a previous hearing, to
wit, the immediacy of the problem sought to be corrected and
the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment.  The properties
involved were not even inimical per se as to require their instant
destruction.  There certainly was no reason why the offense
prohibited by the executive order should not have been proved first
in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution.  Considering that, as we
held in Pesigan v. Angeles,[21] Executive Order No. 626-A is penal in
nature, the violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have had the
authority to impose the prescribed penalty, and only after trial and
conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order.  It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see
fit, in the case of carabaos." (Emphasis supplied.) The phrase "may
condition it is.  It is laden with perilous opportunities for partiality
and abuse, and even corruption.  One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations
that the said officers must observe when they make their
distribution.  There is none.  Their options are apparently boundless. 
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen?  Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion.  Definitely, there
is here a "roving commission," a wide and sweeping authority that is
not "canalized within banks that keep it from overflowing," in short,
a clearly profligate and therefore invalid delegation of legislative
powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose of
the law and, worse, is unduly oppressive.  Due process is violated
because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and
punished.  The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the doctrine
of separation of powers.  There is, finally, also an invalid delegation
of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties
arbitrarily taken.  For these reasons, we hereby declare Executive
Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable in
damages for enforcing the executive order in accordance with its
mandate.  The law was at that time presumptively valid, and it was
his obligation, as a member of the police, to enforce it.  It would
have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his
own responsibility alone, refuse to execute it.  Even the trial court, in
fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the order we
now annul.
The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have reached
us and the taking of his property under the challenged measure
would have become a fait accompli despite its invalidity.  We
commend him for his spirit.  Without the present challenge, the
matter would have ended in that pump boat in Masbate and another
violation of the Constitution, for all its obviousness, would have
been perpetrated, allowed without protest, and soon forgotten in the
limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in
the courage of the people to invoke them whenever they are ignored
or violated.  Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress.  Rights, as weapons,
must be a promise of protection.  They become truly meaningful, and
fulfill the role assigned to them in the free society, if they are kept
bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional.  Except as affirmed above, the decision of the Court
of Appeals is reversed.  The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner.  No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Gancayco, Padilla, Bidin, Sarmiento, and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., on leave.
 Rollo, pp. 7, 28, 29, 34.
[1]
 Ibid., pp. 6-7; Annex B.
[2]
 Justices Coquia Bartolome and Ejercito.
[*]
 Rollo, pp. 6, 27, 33.
[3]
[**]
 Judge Bethel Katalbas-Moscardon.
  Ibid., pp. 10, 11, 14-16, 76.
[4]
Operators Ass. v. City Mayor, 20 SCRA; Primicias v. Fugoso, 80
Phil. 75; U.S. v. Ling Su Tan, 10 Phil. 114; Collins v. Wolfe, 5 Phil.
 129 SCRA 174.
[5]
297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v. Rafferty, 32
Phil. 603.
 Espiritu vs. Fugoso, 81 Phil. 637.
[6]

 15 Phil. 85.

[19]

 Sec. 5 [2(a)], Art. X, 1973 Constitution; Sec. 5 [2(a)], Art. VIII,

[7]

1987 Constitution.  New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA
[20]

602; Gas Corp. of the Phil. vs. Inciong, 93 SCRA 653.

 J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil.
[8]

615, 627.  Supra.

[21]

 US v. Bustos, 37 Phil. 731.

[9]

[10]
 I Aruego, The Framing of the Constitution (1936), pp. 153-159. Batas.org 
[11]
 Twinning vs. New Jersey, 211 U.S. 78.

 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-
[12]

33.

 David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta

[13]

Univ. Foundation, 77 SCRA 321; Lentelera vs. Amores, 70 SCRA

37; Flores vs. Buencamino, 74 SCRA 332; DBP vs. Bautista, 26
SCRA 366; Ong su Han vs. Gutierrez David, 76 Phil. 546; Banco-
Español-Filipino vs. Palanca, 37 Phil. 921.
[14]
 Dartmouth College vs. Woodward, 4 Wheaton 518.
[15]
 Manley v. Georgia, 279 U.S. 1; 1 Cooley 639.
[16]
 Suntay vs. People, 101 Phil. 833.
[17]
 12 C.J. 1224.
[18]
 People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel
 Supreme Court of the Philippines
596 Phil. 444  Procedure, which seeks the reversal of the Decision [3] in C.A.-G.R.
EN BANC
G.R. No. 122846, January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION AND STA. MESA TOURIST &
DEVELOPMENT CORPORATION, PETITIONERS, VS. CITY
OF MANILA, REPRESENTED BY MAYOR ALFREDO S.
LIM, RESPONDENT. 
DECISION
TINGA, J.:
With another city ordinance of Manila also principally involving the
tourist district as subject, the Court is confronted anew with the
incessant clash between government power and individual liberty in
tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,[1] the Court affirmed the
nullification of a city ordinance barring the operation of motels and
inns, among other establishments, within the Ermita-Malate area.
The petition at bar assails a similarly-motivated city ordinance that
prohibits those same establishments from offering short-time
admission, as well as pro-rated or "wash up" rates for such
abbreviated stays. Our earlier decision tested the city ordinance
against our sacred constitutional rights to liberty, due process and
equal protection of law. The same parameters apply to the present
petition.
This Petition[2] under Rule 45 of the Revised Rules on Civil
S.P. No. 33316 of the Court of Appeals, challenges the validity of
Manila City Ordinance No. 7774 entitled, "An Ordinance Prohibiting
Short-Time Admission, Short-Time Admission Rates, and Wash-Up
Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of Manila" (the
Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim)
signed into law the Ordinance.[4] The Ordinance is reproduced in full,
hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy
of the City Government to protect the best interest, health and
welfare, and the morality of its constituents in general and the youth
in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate
[sic], wash-up rate or other similarly concocted terms, are hereby
prohibited in hotels, motels, inns, lodging houses, pension houses
and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12) hours
at any given time or the renting out of rooms more than twice a day
or any other term that may be concocted by owners or managers of
said establishments but would mean the same or would bear the same
meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate
any provision of this ordinance shall upon conviction thereof be
punished by a fine of Five Thousand (P5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both such
fine and imprisonment at the discretion of the court; Provided, That
in case of [a] juridical person, the president, the manager, or the
persons in charge of the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for the same offense,
the business license of the guilty party shall automatically be
cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances
not consistent with or contrary to this measure or any portion hereof
are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately
upon approval.
Enacted by the city Council of Manila at its regular session today,
November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with
prayer for a writ of preliminary injunction and/or temporary
restraining order ( TRO)[5] with the Regional Trial Court (RTC) of
Manila, Branch 9 impleading as defendant, herein respondent City of
Manila (the City) represented by Mayor Lim.[6] MTDC prayed that
the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional.
MTDC claimed that as owner and operator of the Victoria Court in
Malate, Manila it was authorized by Presidential Decree (P.D.) No.
259 to admit customers on a short time basis as well as to charge
customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC),
Titanium Corporation (TC) and Sta. Mesa Tourist and Development
Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention[7] on the ground that the
Ordinance directly affects their business interests as operators of
drive-in-hotels and motels in Manila.[8] The three companies are
components of the Anito Group of Companies which owns and
operates several hotels and motels in Metro Manila. [9]
On December 23, 1992, the RTC granted the motion to intervene.
[10]
 The RTC also notified the Solicitor General of the proceedings
pursuant to then Rule 64, Section 4 of the Rules of Court. On the
same date, MTDC moved to withdraw as plaintiff. [11]
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.[12] The RTC issued a TRO on January 14, 1993, directing
the City to cease and desist from enforcing the Ordinance. [13] The
City filed an Answer dated January 22, 1993 alleging that the
Ordinance is a legitimate exercise of police power. [14]
On February 8, 1993, the RTC issued a writ of preliminary
injunction ordering the city to desist from the enforcement of the
Ordinance.[15] A month later, on March 8, 1993, the Solicitor General
filed his Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to
submit the case for decision without trial as the case involved a
purely legal question.[16] On October 20, 1993, the RTC rendered a
decision declaring the Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774
of the City of Manila is hereby declared null and void.

Accordingly, the preliminary injunction heretofor issued is hereby
made permanent.
SO ORDERED.[17]
The RTC noted that the ordinance "strikes at the personal liberty of
the individual guaranteed and jealously guarded by the
Constitution."[18] Reference was made to the provisions of the
Constitution encouraging private enterprises and the incentive to
needed investment, as well as the right to operate economic
enterprises. Finally, from the observation that the illicit relationships
the Ordinance sought to dissuade could nonetheless be consummated
by simply paying for a 12-hour stay, the RTC likened the law to the
ordinance annulled in Ynot v. Intermediate Appellate Court,[19] where
the legitimate purpose of preventing indiscriminate slaughter of
carabaos was sought to be effected through an inter-province ban on
the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the
Supreme Court.[20] The petition was docketed as G.R. No. 112471.
However in a resolution dated January 26, 1994, the Court treated
the petition as a petition for certiorari and referred the petition to the
Court of Appeals.[21]
Before the Court of Appeals, the City asserted that the Ordinance is a
valid exercise of police power pursuant to Section 458 (4)(iv) of the
Local Government Code which confers on cities, among other local
government units, the power:
[To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including tourist guides and
transports.[22]
The Ordinance, it is argued, is also a valid exercise of the power of
the City under Article III, Section 18(kk) of the Revised Manila
Charter, thus:
"to enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity and the
promotion of the morality, peace, good order, comfort, convenience
and general welfare of the city and its inhabitants, and such others as
be necessary to carry into effect and discharge the powers and duties
conferred by this Chapter; and to fix penalties for the violation of
ordinances which shall not exceed two hundred pesos fine or six
months imprisonment, or both such fine and imprisonment for a
single offense.[23]
Petitioners argued that the Ordinance is unconstitutional and void
since it violates the right to privacy and the freedom of movement; it
is an invalid exercise of police power; and it is an unreasonable and
oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed
the constitutionality of the Ordinance.[24] First, it held that the
Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of
establishments that admit individuals for short time stays. Second,
the virtually limitless reach of police power is only constrained by
having a lawful object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to curb immoral
activities. There is a lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the establishments is
justified by the well-being of its constituents in general. Finally, as
held in Ermita-Malate Motel Operators Association v. City Mayor of
Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review
on certiorari.[25] In their petition and Memorandum, petitioners in
essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of
police power.
II.

We must address the threshold issue of petitioners' standing.
Petitioners allege that as owners of establishments offering "wash-
up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection
rights of their clients are also being interfered with. Thus, the crux of
the matter is whether or not these establishments have the requisite
standing to plead for protection of their patrons' equal protection
rights.
Standing or locus standi is the ability of a party to demonstrate to the
court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of
separation of powers,[26] sparing as it does unnecessary interference
or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial
system derived directly from the Constitution.[27] The constitutional
component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. [28] In this
jurisdiction, the extancy of "a direct and personal interest" presents
the most obvious cause, as well as the standard test for a petitioner's
standing.[29] In a similar vein, the United States Supreme Court
reviewed and elaborated on the meaning of the three constitutional
standing requirements of injury, causation, and redressability
in Allen v. Wright.[30]
Nonetheless, the general rules on standing admit of several
exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of
transcendental importance.[31]
For this particular set of facts, the concept of third party standing as
an exception and the overbreadth doctrine are appropriate. In Powers
v. Ohio,[32] the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third
parties, provided three important criteria are satisfied: the litigant
must have suffered an `injury-in-fact,' thus giving him or her a
"sufficiently concrete interest" in the outcome of the issue in dispute;
the litigant must have a close relation to the third party; and there
must exist some hindrance to the third party's ability to protect his or
her own interests."[33] Herein, it is clear that the business interests of
the petitioners are likewise injured by the Ordinance. They rely on
the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The
relative silence in constitutional litigation of such special interest
groups in our nation such as the American Civil Liberties Union in
the United States may also be construed as a hindrance for customers
to bring suit.[34]
American jurisprudence is replete with examples where parties-in-
interest were allowed standing to advocate or invoke the fundamental
due process or equal protection claims of other persons or classes of
persons injured by state action. In Griswold v. Connecticut,[35] the
United States Supreme Court held that physicians had standing to
challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available
to their patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be
diluted or adversely affected unless those rights are considered in a
suit involving those who have this kind of confidential relation to
them."[36]
An even more analogous example may be found in Craig v. Boren,
[37]
 wherein the United States Supreme Court held that a licensed
beverage vendor has standing to raise the equal protection claim of a
male customer challenging a statutory scheme prohibiting the sale of
beer to males under the age of 21 and to females under the age of 18.
The United States High Court explained that the vendors had
standing "by acting as advocates of the rights of third parties who
seek access to their market or function."[38]

Assuming arguendo that petitioners do not have a relationship with
their patrons for the former to assert the rights of the latter, the
overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when a statute
needlessly restrains even constitutionally guaranteed rights. [39] In this
case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments
for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind
not only the recent City of Manila ruling, but our 1967 decision
in Ermita-Malate Hotel and Motel Operations Association, Inc., v.
Hon. City Mayor of Manila.[40] Ermita-Malate concerned the City
ordinance requiring patrons to fill up a prescribed form stating
personal information such as name, gender, nationality, age, address
and occupation before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely enacted to
minimize certain practices deemed harmful to public morals. A
purpose similar to the annulled ordinance in City of Manila which
sought a blanket ban on motels, inns and similar establishments in
the Ermita-Malate area. However, the constitutionality of the
ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at
bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a view
of regulating public morals including particular illicit activity in
transient lodging establishments. This could be described as the
middle case, wherein there is no wholesale ban on motels and hotels
but the services offered by these establishments have been severely
restricted. At its core, this is another case about the extent to which
the State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure
prescribed by law, it must also conform to the following substantive
requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may regulate trade; (5)
must be general and consistent with public policy; and (6) must not
be unreasonable.[41]
The Ordinance prohibits two specific and distinct business practices,
namely wash rate admissions and renting out a room more than twice
a day. The ban is evidently sought to be rooted in the police power as
conferred on local government units by the Local Government Code
through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough room
for an efficient and flexible response as the conditions warrant.
[42]
 Police power is based upon the concept of necessity of the State
and its corresponding right to protect itself and its people. [43] Police
power has been used as justification for numerous and varied actions
by the State. These range from the regulation of dance halls,
[44]
 movie theaters,[45] gas stations[46] and cockpits.[47] The awesome
scope of police power is best demonstrated by the fact that in its
hundred or so years of presence in our nation's legal system, its use
has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate
the use of the covered establishments for illicit sex, prostitution, drug
use and alike. These goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of the State. Yet
the desirability of these ends do not sanctify any and all means for
their achievement. Those means must align with the Constitution,
and our emerging sophisticated analysis of its guarantees to the
people. The Bill of Rights stands as a rebuke to the seductive theory
of Macchiavelli, and, sometimes even, the political majorities
animated by his cynicism.
Even as we design the precedents that establish the framework for
analysis of due process or equal protection questions, the courts are
naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we
are compelled to nullify executive or legislative actions, yet another
form of caution emerges. If the Court were animated by the same
passing fancies or turbulent emotions that motivate many political
decisions, judicial integrity is compromised by any perception that
the judiciary is merely the third political branch of government. We
derive our respect and good standing in the annals of history by
acting as judicious and neutral arbiters of the rule of law, and there is
no surer way to that end than through the development of rigorous
and sophisticated legal standards through which the courts analyze
the most fundamental and far-reaching constitutional questions of the
day.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the
Constitution. Due process evades a precise definition. [48]The purpose
of the guaranty is to prevent arbitrary governmental encroachment
against the life, liberty and property of individuals. The due process
guaranty serves as a protection against arbitrary regulation or
seizure. Even corporations and partnerships are protected by the
guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as
imposing two related but distinct restrictions on government,
"procedural due process" and "substantive due process." Procedural
due process refers to the procedures that the government must follow
before it deprives a person of life, liberty, or property. [49] Procedural
due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private
sphere. Examples range from the form of notice given to the level of
formality of a hearing.
If due process were confined solely to its procedural aspects, there
would arise absurd situation of arbitrary government action, provided
the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It
inquires whether the government has sufficient justification for
depriving a person of life, liberty, or property. [50]
The question of substantive due process, moreso than most other
fields of law, has reflected dynamism in progressive legal thought
tied with the expanded acceptance of fundamental freedoms. Police
power, traditionally awesome as it may be, is now confronted with a
more rigorous level of analysis before it can be upheld. The vitality
though of constitutional due process has not been predicated on the
frequency with which it has been utilized to achieve a liberal result
for, after all, the libertarian ends should sometimes yield to the
prerogatives of the State. Instead, the due process clause has
acquired potency because of the sophisticated methodology that has
emerged to determine the proper metes and bounds for its
application.
C.

The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved
footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.[51] Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the legislature unless
there is a discrimination against a "discrete and insular" minority or
infringement of a "fundamental right."[52] Consequently, two
standards of judicial review were established: strict scrutiny for laws
dealing with freedom of the mind or restricting the political process,
and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny,
was later adopted by the U.S. Supreme Court for evaluating
classifications based on gender[53] and legitimacy.[54]Immediate
scrutiny was adopted by the U.S. Supreme Court in Craig,[55] after
the Court declined to do so in Reed v. Reed.[56] While the test may
have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases
as well.
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. [57] Using the rational basis
examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest.[58] Under intermediate review,
governmental interest is extensively examined and the availability of
less restrictive measures is considered. [59] Applying strict scrutiny,
the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means
for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny
refers to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of
fundamental freedoms.[60] Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights as expansion from its earlier
applications to equal protection.[61] The United States Supreme Court
has expanded the scope of strict scrutiny to protect fundamental
rights such as suffrage,[62] judicial access[63] and interstate travel.[64]
If we were to take the myopic view that an Ordinance should be
analyzed strictly as to its effect only on the petitioners at bar, then it
would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the
petitioners, an injury that would warrant the application of the most
deferential standard - the rational basis test. Yet as earlier stated, we
recognize the capacity of the petitioners to invoke as well the
constitutional rights of their patrons - those persons who would be
deprived of availing short time access or wash-up rates to the lodging
establishments in question.
Viewed cynically, one might say that the infringed rights of these
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up
their cedulas. Still, the Bill of Rights does not shelter gravitas alone.
Indeed, it is those "trivial" yet fundamental freedoms - which the
people reflexively exercise any day without the impairing awareness
of their constitutional consequence - that accurately reflect the
degree of liberty enjoyed by the people. Liberty, as integrally
incorporated as a fundamental right in the Constitution, is not a Ten
Commandments-style enumeration of what may or what may not be
done; but rather an atmosphere of freedom where the people do not
feel labored under a Big Brother presence as they interact with each
other, their society and nature, in a manner innately understood by
them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to
liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."[ [65]] In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.[ [66]]
The U.S. Supreme Court in the case of Roth v. Board of Regents,
sought to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the
liberty . . . guaranteed [by the Fifth and Fourteenth Amendments],
the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to
the dictates of his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the orderly pursuit of
happiness by free men. In a Constitution for a free people, there can
be no doubt that the meaning of "liberty" must be broad indeed.
[67]
 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is
the curtailment of sexual behavior. The City asserts before this Court
that the subject establishments "have gained notoriety as venue of
`prostitution, adultery and fornications' in Manila since they `provide
the necessary atmosphere for clandestine entry, presence and exit
and thus became the `ideal haven for prostitutes and thrill-
seekers.'"[68] Whether or not this depiction of a mise-en-scene of vice
is accurate, it cannot be denied that legitimate sexual behavior
among willing married or consenting single adults which is
constitutionally protected[69] will be curtailed as well, as it was in
the City of Manila case. Our holding therein retains significance for
our purposes:
The concept of liberty compels respect for the individual whose
claim to privacy and interference demands respect. As the case
of Morfe v. Mutuc, borrowing the words of Laski, so very aptly
stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which
are, broadly speaking, that his experience is private, and the will
built out of that experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set by the will of
others, he ceases to be a master of himself. I cannot believe that a
man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling
state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully
deserving of constitutional protection. Governmental powers should
stop short of certain intrusions into the personal life of the citizen. [70]
We cannot discount other legitimate activities which the Ordinance
would proscribe or impair. There are very legitimate uses for a wash
rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel whilst
the power is momentarily out in their homes. In transit passengers
who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person
or groups of persons in need of comfortable private spaces for a span
of a few hours with purposes other than having sex or using illegal
drugs can legitimately look to staying in a motel or hotel as a
convenient alternative.
 E.
That the Ordinance prevents the lawful uses of a wash rate depriving
patrons of a product and the petitioners of lucrative business ties in
with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the
interests of the public generally, as distinguished from those of a
particular class, require an interference with private rights and the
means must be reasonably necessary for the accomplishment of the
purpose and not unduly oppressive of private rights.[71] It must also
be evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. More importantly, a
reasonable relation must exist between the purposes of the measure
and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those
pertaining to private property will not be permitted to be arbitrarily
invaded.[72]
Lacking a concurrence of these requisites, the police measure shall
be struck down as an arbitrary intrusion into private rights. As held
in Morfe v. Mutuc, the exercise of police power is subject to judicial
review when life, liberty or property is affected. [73] However, this is
not in any way meant to take it away from the vastness of State
police power whose exercise enjoys the presumption of validity. [74]
Similar to the Comelec resolution requiring newspapers to donate
advertising space to candidates, this Ordinance is a blunt and heavy
instrument.[75] The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents legitimate use of
places where illicit activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems them all susceptible to
illicit patronage and subject them without exception to the unjustified
prohibition.
The Court has professed its deep sentiment and tenderness of the
Ermita-Malate area, its longtime home,[76] and it is skeptical of those
who wish to depict our capital city - the Pearl of the Orient - as a
modern-day Sodom or Gomorrah for the Third World set. Those still
steeped in Nick Joaquin-dreams of the grandeur of Old Manila will
have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and
vice is a common problem confronted by the modern metropolis
wherever in the world. The solution to such perceived decay is not to
prevent legitimate businesses from offering a legitimate product.
Rather, cities revive themselves by offering incentives for new
businesses to sprout up thus attracting the dynamism of individuals
that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would the
strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect "wash rates" from their
clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to
the extent that may fairly be required by the legitimate demands of
public interest or public welfare. The State is a leviathan that must be
restrained from needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may be, it is in effect an
arbitrary and whimsical intrusion into the rights of the establishments
as well as their patrons. The Ordinance needlessly restrains the
operation of the businesses of the petitioners as well as restricting the
rights of their patrons without sufficient justification. The Ordinance
rashly equates wash rates and renting out a room more than twice a
day with immorality without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among
citizens deserves the full endorsement of the judiciary provided that
such measures do not trample rights this Court is sworn to protect.
[77]
 The notion that the promotion of public morality is a function of
the State is as old as Aristotle.[78] The advancement of moral
relativism as a school of philosophy does not de-legitimize the role
of morality in law, even if it may foster wider debate on which
particular behavior to penalize. It is conceivable that a society with
relatively little shared morality among its citizens could be functional
so long as the pursuit of sharply variant moral perspectives yields an
adequate accommodation of different interests. [79]
To be candid about it, the oft-quoted American maxim that "you
cannot legislate morality" is ultimately illegitimate as a matter of
law, since as explained by Calabresi, that phrase is more accurately
interpreted as meaning that efforts to legislate morality will fail if
they are widely at variance with public attitudes about right and
wrong.[80] Our penal laws, for one, are founded on age-old moral
traditions, and as long as there are widely accepted distinctions
between right and wrong, they will remain so oriented.
Yet the continuing progression of the human story has seen not only
the acceptance of the right-wrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of life to the
fullest. Our democracy is distinguished from non-free societies not
with any more extensive elaboration on our part of what is moral and
immoral, but from our recognition that the individual liberty to make
the choices in our lives is innate, and protected by the State.
Independent and fair-minded judges themselves are under a moral
duty to uphold the Constitution as the embodiment of the rule of law,
by reason of their expression of consent to do so when they take the
oath of office, and because they are entrusted by the people to uphold
the law.[81]
Even as the implementation of moral norms remains an
indispensable complement to governance, that prerogative is hardly
absolute, especially in the face of the norms of due process of liberty.
And while the tension may often be left to the courts to relieve, it is
possible for the government to avoid the constitutional conflict by
employing more judicious, less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the
Court of Appeals is REVERSED, and the Decision of the Regional
Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No.
7774 is hereby declared UNCONSTITUTIONAL. No
pronouncement as to costs.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Austria-Martinez,
Corona, Carpio Morales, Azcuna, Chico-Nazario, Velasco, Jr.,
Nachura, and Leonardo-De Castro, JJ., concur.
Carpio, J., on official leave.
Brion, J., on official leave.
Peralta, J., on leave.
[1]
 G.R. 118127, 12 April 2005, 455 SCRA 308.
[2]
 See rollo, pp. 4-41.
Id. at 42-59. Penned by Associate Justice Jaime M. Lantin,
[3] 
concurred in by Associate Justices Ricardo P. Galvez (later,
Solicitor-General) and Antonio P. Solano.
[4]
 Id. at 46. [22]
 Id. at 53.
[5] 
Id. at 62-69. [23]
 Id.
[6]
 Id. at 45-46. [24] 
Id. at 43-59.
[7]
 Id. at 70-77. [25] 
Id. at 4-40.
[8] 
Id. at 47. [26]
 Allen v. Wright, 468 U.S. 737 (1984).
[9] 
Id.  Const., Art. VIII , Sec. 5, Sanlakas v. Executive
[27]

Secretary Reyes, 466 Phil. 482 (2004).

[10]
 Id.
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99
[28] 
[11]
 Id. at 48. S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979).
[12] 
Id. at 81.  See Domingo v. Carague, G.R. No. 161065,15 April 2005, 456
[29]

SCRA 450. See also Macasiano v. National Housing Authority, G.R.

[13] 
Id. at 82-83. No. 107921, 1 July 1993, 224 SCRA 236.
[14]
 Id. at 84-99. [30]
 468 U.S. 737 (1984).
[15]
 Id. at 104-105. [31]
 Supra note 29.
[16] 
Id. at 49. [32]
 499 U.S. 400 (1991).
[17]
 Id. at 52. [33]
 Id. at p 410-411.
[18]
 Id. at 120.  See Kelsey McCowan Heilman, The Rights of Others: Protection
[34]

and Advocacy Organizations Associational Standing to Sue, 157 U.

[19]
 No. L-74457, 20 March 1987, 148 SCRA 659. Pa. L. Rev. 237, for a general discussion on advocacy groups.
[20]
 Rollo, pp. 129-145. [35]
 381 U.S. 479(1965).
[21] 
Id. at 158. [36]
 Id. at 481.
 [49]
 Lopez v. Director of Lands, 47 Phil. 23, 32 (1924).
[37]
 429 U.S. 190 (1976).
 See City of Manila v. Hon. Laguio, Jr., supra note 1 at 330 citing
[50]
[38] 
Id. at 194. CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW
PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002).
 Chavez v. Comelec, G.R. No. 162777, 31 August 2004, 437
[39]

SCRA 415; Adiong v. Comelec, G.R. No. 103956, 31 March 1992, [51]

 304 U.S. 144 (1938).
207 SCRA 712.
[52] 
Id, at 152.
[40]
 127 Phil. 306 (1967).
[53]
 Craig v. Boren, 429 U.S. 190 (1976).
 City of Manila v. Laguio, Jr., supra note 1; Tatel v. Municipality
[41]

of Virac, G.R. No. 40243, 11 March 1992, 207 SCRA 157, [54]

 Clark v. Jeter, 486 U.S. 456 (1988).
161; Solicitor General v. Metropolitan Manila Authority, G.R. No.
102782, 11 December 1991, 204 SCRA 837, 845; Magtajas v. Pryce [55]
 429 U.S. 190 (1976).
Properties Corp., Inc., G.R. No. 111097, 20 July 1994, 234 SCRA
255, 268-267. [56]
 404 U.S. 71 (1971).

 Ermita-Malate Hotel and Motel Operators Association, Inc. v.

[42]
Central Bank Employee's Association v. Bangko Sentral ng
[57] 

City Mayor of Manila, 127 Phil. 306 (1967). Pilipinas, 487 Phil. 531 (2004); Association of Small Landowners in
the Philippines v. Secretary of Agrarian Reform, G.R. Nos. 78742,
 JMM Promotion and Management Inc. v. Court of Appeals, 329
[43]
79310, 79744, and 79777, July 14, 1989, 175 SCRA 343; In Ermita-
Phil. 87, 94 (1996) citing Rubi v. Provincial Board of Mindoro, 39 Malate, supra note 1 at 324, the Court in fact noted: "if the liberty
Phil. 660 (1919). involved were freedom of the mind or the person, the standard for
the validity of government acts is much more rigorous and exacting,
[44] 
U.S. v. Rodriguez, 38 Phil. 759. but where the liberty curtailed affects what are at the most rights of
property, the permissible scope of regulatory measures is wider."
[45]
 People v. Chan, 65 Phil. 611 (1938).
 Central Bank Employee's Association v. Bangko Sentral ng
[58]
[46]
 Javier v. Earnshaw, 64 Phil. 626 (1937). Pilipinas, supra note 57.
[47] 
Pedro v. Provincial Board of Rizal, 56 Phil. 123 (1931). [59]
 Id.

See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular Government

[48] 
 Mendoza, J., Concurring Opinion in Estrada v. Sandiganbayan,
[60]

v. Ling Su Fan, 15 Phil. 58 (1910). G.R. No. 148560, 19 November 2001, 369 SCRA 394.
[61]
 Id.
[62]
 Bush v. Gore, 531 U.S. 98 (2000).
[63] 
Boddie v. Connecticut, 401 U.S. 371 (1971).
 Shapiro v. Thompson, 394 U.S. 618 (1969). It has been opined by
[64]
Chemerinsky that the use of the equal protection clause was to avoid
the use of substantive due process since the latter fell into disfavor in
the United States. See Erwin Chemerinsky, Constitutional Law,
Principles and Policies (2nd ed. 2002).
[65]
 Morfe v. Mutuc, 130 Phil. 415 (1968).
[66]
 Id. at 440.
[67]
 City of Manila v. Laguio, Jr., supra note 1 at 336-337.
[68]
 Rollo, p. 258.
"Motel patrons who are single and unmarried may invoke this
[69]  [75]
right to autonomy to consummate their bonds in intimate sexual
conduct within the motel's premises -- be it stressed that their
consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution. (See Concerned
Employee v. Glenda Espiritu Mayor, A.M. No. P-02-1564, 23
November 2004) Adults have a right to choose to forge such
relationships with others in the confines of their own private lives
and still retain their dignity as free persons. The liberty protected by
the Constitution allows persons the right to make this choice. Their
right to liberty under the due process clause gives them the full right
to engage in their conduct without intervention of the government, as
long as they do not run afoul of the law. Liberty should be the rule
and restraint the exception.
Liberty in the constitutional sense not only means freedom from
unlawful government restraint; it must include privacy as well, if it is
to be a repository of freedom. The right to be let alone is the
beginning of all freedom -- it is the most comprehensive of rights
and the right most valued by civilized men." City of Manila v. Hon.
Laguio, Jr. supra note 1 at 337-338.
[70]
 City of Manila v. Laguio, Jr., supra note 1 at 338-339.
 Metro Manila Development Authority v. Viron Transportation
[71]
Co., G.R. Nos. 170656 and 170657, 15 August 2007, 530 SCRA
341.
[72]
 U.S. v. Toribio, 15 Phil. 85 (1910).
[73]
 130 Phil. 415 (1968).
Carlos Superdrug v. DSWD, G.R. No. 166494, June 29,
[74] 
2007, Alalayan v. National Power Corporation, 24 Phil. 172
(1968); U.S. v. Salaveria, 39 Phil. 102 (1918).
 
Philippine Press Institute v. Comelec, 314 Phil. 131 (1995).
[76]
 Supra note 1.
 City of Manila v. Hon. Laguio, Jr., supra note 1; De La Cruz, et
[77]
al. v. Hon. Paras, et al., 208 Phil. 490 (1983); Ermita-Malate Hotel
and Motel Operations Association, Inc. v. City Mayor of Manila,
supra note 42.
 "The end of the state is not mere life; it is, rather, a good quality
[78]
of life." Therefore any state "which is truly so called, and is not
merely one in name, must devote itself to the end of encouraging
goodness. Otherwise, a political association sinks into a mere
alliance..." The law "should be a rule of life such as will make the
members of a [state] good and just." Otherwise it "becomes a mere
covenant - or (in the phrase of the Sophist Lycophron) `a guarantor
of men's rights against one another.'" Politics II.9.6-8.1280 31-  See Burton , S., Judging in Good Faith, (1992 ed.), at 218.
[81]

1280bii; cited in Hamburger, M., Morals and Law: The Growth of

Aristotle's Legal Theory (1951 ed.), p. 178.

 Greenwalt, K., Conflicts of Law and Morality (1989 ed.), at 38.

[79]
Batas.org 
 Steven G., Render Unto Caesar that which is Caesars, and unto
[80]

God that which is God's, 31 Harv. J.L. & Pub. Pol'y 495. He cites the
example of the failed Twentieth (?) Amendment to the U.S.
Constitution, which prohibited the sale and consumption of liquor,
where it was clear that the State cannot justly and successfully
regulate consumption of alcohol, when huge portions of the
population engage in its consumption.

See also Posner, Richard H., The Problematics of Moral And Legal

Theory, The Belknap Press of Harvard University Press (2002). He
writes:
. . . Holmes warned long ago of the pitfalls of misunderstanding law
by taking its moral vocabulary too seriously. A big part of legal
education consists of showing students how to skirt those pitfalls.
The law uses moral terms in part because of its origin, in part to be
impressive, in part to speak a language that the laity, to whom the
commands of the law are addressed, is more likely to understand -
and in part, because there is a considerable overlap between law and
morality. The overlap, however, is too limited to justify trying to
align these two systems of social control (the sort of project that
Islamic nations such as Iran, Pakistan, and Afghanistan have been
engaged in of late). It is not a scandal when the law to pronounce it
out of phase with current moral feeling. If often is, and for good
practical reasons (in particular, the law is a flywheel, limiting the
effects of wide swings in public opinion). When people make that
criticism--as many do of the laws, still found on the statute books of
many states, punishing homosexual relations--what they mean is that
the law neither is supported by public opinion nor serves any
temporal purpose, even that of stability, that it is merely a vestige, an
empty symbol.
 Supreme Court of the Philippines
G.R. No. 179267  Thus, on March 8, 2004, after nine (9) years of spirited advocacy by
EN BANC
G.R. No. 179267, June 25, 2013
JESUS C. GARCIA, PETITIONER, VS. THE HONORABLE
RAY ALAN T. DRILON, PRESIDING JUDGE, REGIONAL
TRIAL COURT-BRANCH 41, BACOLOD CITY, AND
ROSALIE JAYPE-GARCIA, FOR HERSELF IN BEHALF OF
MINOR CHILDREN, NAMELY: JO-ANN, JOSEPH AND
EDUARD, JESSE ANTHONE, ALL SURNAMED GARCIA,
RESPONDENTS.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts
of 86.8 million Filipinos -or 93 percent of a total population of 93.3
million - adhering to the teachings of Jesus Christ. [1] Yet, the
admonition for husbands to love their wives as their own bodies just
as Christ loved the church and gave himself up for her[2] failed to
prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino
Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were committed
by the women's intimate partners such as their husbands and live-in
partners.”[3]
women's groups, Congress enacted Republic Act (R.A.) No. 9262,
entitled “An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes.” It took effect on March
27, 2004.[4]
R.A. 9262 is a landmark legislation that defines and criminalizes acts
of violence against women and their children (VAWC) perpetrated
by women's intimate partners, i.e, husband; former husband; or any
person who has or had a sexual or dating relationship, or with
whom the woman has a common child.[5] The law provides
for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers, prosecutors and
court personnel, social workers, health care providers, and other
local government officials in responding to complaints of VAWC or
requests for assistance.
A husband is now before the Court assailing the constitutionality of
R.A. 9262 as being violative of the equal protection and due process
clauses, and an undue delegation of judicial power to barangay
officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed,
for herself and in behalf of her minor children, a verified
petition[6] (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of
marital infidelity on the part of petitioner, with threats of deprivation
of custody of her children and of financial support. [7]
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years
old and the former was eleven years her senior. They have three (3)
children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural
child of petitioner but whom private respondent adopted; Jessie
Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3
years old.[8]
Private respondent described herself as a dutiful and faithful wife,
whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately
isolated her from her friends. When she took up law, and even when
she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home.
He was often jealous of the fact that his attractive wife still catches
the eye of some men, at one point threatening that he would have any
man eyeing her killed.[9]
Things turned for the worse when petitioner took up an affair with a
bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted
to the household help about his sexual relations with said bank
manager. Petitioner told private respondent, though, that he was just
using the woman because of their accounts with the bank. [10]
Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and
shook her with such force that caused bruises and hematoma. At
another time, petitioner hit private respondent forcefully on the lips
that caused some bleeding. Petitioner sometimes turned his ire on
their daughter, Jo-Ann, who had seen the text messages he sent to his
paramour and whom he blamed for squealing on him. He beat Jo-
Ann on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her mother to
stay for fear that if the latter leaves, petitioner would beat her up.
Even the small boys are aware of private respondent's sufferings.
Their 6- year-old son said that when he grows up, he would beat up
his father because of his cruelty to private respondent. [11]
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005, while at
home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was
hospitalized for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her. Since then,
private respondent has been undergoing therapy almost every week
and is taking anti-depressant medications.[12]
When private respondent informed the management of Robinson's
Bank that she intends to file charges against the bank manager,
petitioner got angry with her for jeopardizing the manager's job. He
then packed his things and told private respondent that he was
leaving her for good. He even told private respondent's mother, who
lives with them in the family home, that private respondent should
just accept his extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her.[13]
Private respondent is determined to separate from petitioner but she
is afraid that he would take her children from her and deprive her of
financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo. [14]
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three corporations
– 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-
Bros Trading Corporation – of which he and private respondent are
both stockholders. In contrast to the absolute control of petitioner
over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less than
P200,000.00 a month are paid for by private respondent through the
use of credit cards, which, in turn, are paid by the same corporation
together with the bills for utilities.[15]
On the other hand, petitioner receives a monthly salary of
P60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited
cash advances and other benefits in hundreds of thousands of pesos
from the corporations.[16]  After private respondent confronted him
about the affair, petitioner forbade her to hold office at JBTC
Building, Mandalagan, where all the businesses of the corporations
are conducted, thereby depriving her of access to full information
about said businesses. Until the filing of the petition a quo, petitioner
has not given private respondent an accounting of the businesses the
value of which she had helped raise to millions of pesos. [17]
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or is
about to recur, the RTC issued a TPO[18] on March 24, 2006 effective
for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal
dwelling or family home within 24 hours from receipt of the
Temporary Restraining Order and if he refuses, ordering that he be
removed by police officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states “regardless of
ownership”), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the
Respondent.
After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the conjugal
dwelling to remove things, the Petitioner shall be assisted by police
officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on
Sunday, 26 March 2006 because of the danger that the Respondent
will attempt to take her children from her when he arrives from
Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all
her household help and driver from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the Petitioner may
be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or through
other persons, or contact directly or indirectly her children, mother
and household help, nor send gifts, cards, flowers, letters and the
like. Visitation rights to the children may be subject of a modified
TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm
and a Walther PPK and ordering the Philippine National Police
Firearms and Explosives Unit and the Provincial Director of the PNP
to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or
control.
e) To pay full financial support for the Petitioner and the children,
including rental of a house for them, and educational and medical
expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and
other cash he received from all the corporations from 1 January 2006
up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not later
than 2 April 2006. Thereafter, an accounting of all these funds shall
be reported to the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of Indirect
Contempt of Court.
h) To ensure compliance especially with the order granting support
pendente lite, and considering the financial resources of the
Respondent and his threat that if the Petitioner sues she will not get a
single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in
two sufficient sureties.
On April 24, 2006, upon motion[19] of private respondent, the trial
court issued an amended TPO,[20] effective for thirty (30) days, which
included the following additional provisions:
i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which they are
using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the
house in Parañaque, the continued use of the Starex van in Metro
Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the
peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the
sum of One Hundred Fifty Thousand Pesos (Php 150,000.00) per
month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00)
per month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition
to the Urgent Ex-Parte Motion for Renewal of the TPO [21] seeking
the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of
hearing. He further asked that the TPO be modified by (1) removing
one vehicle used by private respondent and returning the same to its
rightful owner, the J-Bros Trading Corporation, and (2) cancelling or
reducing the amount of the bond from P5,000,000.00 to a more
manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved[22] for the
modification of the TPO to allow him visitation rights to his
children.
On May 24, 2006, the TPO was renewed and extended yet again, but
subject only to the following modifications prayed for by private
respondent:
a) That respondent (petitioner herein) return the clothes and other
personal belongings of Rosalie and her children to Judge Jesus
Ramos, co-counsel for Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and
equipment in the conjugal house in Pitimini St., Capitolville
Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City
Police Headquarters to remove Respondent from the conjugal
dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie and
her representatives can remove things from the conjugal home and
make an inventory of the household furniture, equipment and other
things in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00
for rental and Php25,000.00 for clothes of the three petitioners (sic)
children within 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in indirect contempt of
Court;
e) That respondent surrender his two firearms and all unlicensed
firearms to the Clerk of Court within 24 hours from receipt of the
Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the
children upon presentation of proof of payment of such expenses. [23]
Claiming that petitioner continued to deprive them of financial
support; failed to faithfully comply with the TPO; and committed
new acts of harassment against her and their children, private
respondent filed another application[24] for the issuance of a TPO ex
parte. She alleged inter alia that petitioner contrived a replevin suit
against himself by J-Bros Trading, Inc., of which the latter was
purportedly no longer president, with the end in view of recovering
the Nissan Patrol and Starex Van used by private respondent and the
children. A writ of replevin was served upon private respondent by a
group of six or seven policemen with long firearms that scared the
two small boys, Jessie Anthone and Joseph Eduard.[25]
While Joseph Eduard, then three years old, was driven to school, two
men allegedly attempted to kidnap him, which incident traumatized
the boy resulting in his refusal to go back to school. On another
occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the
arm and threatened her.[26]  The incident was reported to the police,
and Jo-Ann subsequently filed a criminal complaint against her
father for violation of R.A. 7610, also known as the “Special
Protection of Children Against Child Abuse, Exploitation and
Discrimination Act.”
Aside from the replevin suit, petitioner's lawyers initiated the filing
by the housemaids working at the conjugal home of a complaint for
kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said
home to get her and her children's belongings. Finding some of her
things inside a housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft against Jamola. [27]
On August 23, 2006, the RTC issued a TPO,[28] effective for thirty
(30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally
or through another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or
otherwise communicating in any form with the offended party, either
directly or indirectly;
3) Required to stay away, personally or through his friends, relatives,
employees or agents, from all the Petitioners Rosalie J. Garcia and
her children, Rosalie J. Garcia's three brothers, her mother Primitiva
Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona
and the petitioner's other household helpers from a distance of 1,000
meters, and shall not enter the gate of the subdivision where the
Petitioners are temporarily residing, as well as from the schools of
the three children; Furthermore, that respondent shall not contact the
schools of the children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees directly, otherwise he
will have access to the children through the schools and the TPO will
be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber
firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a
month and Php50,000.00 for rental for the period from August 6 to
September 6, 2006; and support in arrears from March 2006 to
August 2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the
amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate
No. FEW 508 and a Starex van with Plate No. FFD 991 and should
the respondent fail to deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the one taken by J
Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or
otherwise dispose of the conjugal assets, or those real properties in
the name of Jesus Chua Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J. Garcia and
respondent have an interest in, especially the conjugal home located
in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City, and
other properties which are conjugal assets or those in which the
conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes “I,” “I-1,” and
“I-2,” including properties covered by TCT Nos. T-186325 and T-
168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B.
Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to
any person, entity or corporation without the personal presence of
petitioner Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of petitioner
Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the
conjugal partnership of gains.
In its Order[29] dated September 26, 2006, the trial court extended the
aforequoted TPO for another ten (10) days, and gave petitioner a
period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's
manifestation,[30] however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court
directed in its Order[31] dated October 6, 2006 that petitioner be
furnished a copy of said motion. Nonetheless, an Order [32] dated a
day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23,
2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no
longer submitted the required comment to private respondent's
motion for renewal of the TPO arguing that it would only be an
“exercise in futility.”[33]
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed
before the Court of Appeals (CA) a petition[34] for prohibition (CA-
G.R. CEB- SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262
for being violative of the due process and the equal protection
clauses, and (2) the validity of the modified TPO issued in the civil
case for being “an unwanted product of an invalid law.”
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order[35] (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed[36] the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil
case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity of R.A. 9262 through a
petition for prohibition seeking to annul the protection orders issued
by the trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having
been denied in the Resolution[37] dated August 14, 2007, petitioner is
now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE.
 III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN
NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE
TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.[38]
The Ruling of the Court
Before delving into the arguments propounded by petitioner against
the constitutionality of R.A. 9262, we shall first tackle the propriety
of the dismissal by the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at
the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.[39] Courts will not
anticipate a question of constitutional law in advance of the necessity
of deciding it.[40]
In defending his failure to attack the constitutionality of R.A. 9262
before the RTC of Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is “inadequate to
tackle the complex issue of constitutionality.” [41]
We disagree.
Family Courts have authority and jurisdiction
to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special
courts, of the same level as Regional Trial Courts. Under R.A. 8369,
otherwise known as the “Family Courts Act of 1997,” family courts
have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children. [42] In accordance
with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in
each of several key cities identified.[43] To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that
Regional Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of VAWC defined
under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a
Family Court shall have original and exclusive jurisdiction over
cases of violence against women and their children under this law. In
the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where
the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City
remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization,
admiralty or insolvency.[44] It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,[45] “this authority being
embraced in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law.”[46] The Constitution vests the
power of judicial review or the power to declare the constitutionality
or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not
only in this Court, but in all RTCs.[47] We said in J.M. Tuason and
Co., Inc. v. CA[48] that, “[p]lainly the Constitution contemplates that
the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate
review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue.” Section 5, Article VIII of
the 1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the earliest
opportunity in his Opposition to the petition for protection order
before the RTC of Bacolod City, which had jurisdiction to determine
the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and not
an answer.[49]  Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint, but any cause
of action which could be the subject thereof may be litigated in a
separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since
a counterclaim, cross-claim and third-party complaint are to be
excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim
for money or other relief which a defending party may have against
an opposing party.[50] A cross- claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of
a counterclaim therein.[51] Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a
person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.
[52]
 As pointed out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action that could be
the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in
view of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of
the case a quo because the right of private respondent to a protection
order is founded solely on the very statute the validity of which is
being attacked[53] by petitioner who has sustained, or will sustain,
direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a
valid cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in
nature should not have deterred petitioner from raising the same in
his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by
evidence.[54] Be that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:
SEC. 25. Order for further hearing. - In case the court determines
the need for further hearing, it may issue an order containing the
following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been
marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which
shall be done in one day, to the extent possible, within the 30-day
period of the effectivity of the temporary protection order issued.
(Emphasis supplied)
To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26 (b) of A.M. No. 04-
10-11- SC provides that if a temporary protection order issued is due
to expire, the trial court may extend or renew the said order for a
period of thirty (30) days each time until final judgment is rendered.
It may likewise modify the extended or renewed temporary
protection order as may be necessary to meet the needs of the parties.
With the private respondent given ample protection, petitioner could
proceed to litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of the rules on
summary procedure.
In view of all the foregoing, the appellate court correctly dismissed
the petition for prohibition with prayer for injunction and temporary
restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a
superior court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing
of a petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day
TRO issued by the appellate court in this case against the
enforcement of the TPO, the amended TPOs and other orders
pursuant thereto was improper, and it effectively hindered the case
from taking its normal course in an expeditious and summary
manner.

As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment
granting permanent protection shall not stay its enforcement, [55] with
more reason that a TPO, which is valid only for thirty (30) days at a
time,[56] should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or
invalid, does not of itself entitle a litigant to have the same enjoined.
[57]
 In Younger v. Harris, Jr.,[58] the Supreme Court of the United
States declared, thus:
Federal injunctions against state criminal statutes, either in their
entirety or with respect to their separate and distinct prohibitions, are
not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune
from prosecution, in good faith, for his alleged criminal acts. The
imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until
the trial court hears fully the merits of the case. It bears stressing,
however, that protection orders are granted ex parteso as to protect
women and their children from acts of violence. To issue an
injunction against such orders will defeat the very purpose of the law
against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from
our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues,
and with more reason now, in view of private respondent's plea in
her Comment[59] to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we
shall.
Intent of Congress in enacting R.A. 9262.  
Petitioner claims that since R.A. 9262 is intended to prevent and
criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the
law.[60]
A perusal of the deliberations of Congress on Senate Bill No. 2723,
[61]
 which became R.A. 9262, reveals that while the sponsor, Senator
Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had
originally proposed what she called a “synthesized measure” [62] – an
amalgamation of two measures, namely, the “Anti-Domestic
Violence Act” and the “Anti- Abuse of Women in Intimate
Relationships Act”[63] – providing protection to “all family members,
leaving no one in isolation” but at the same time giving special
attention to women as the “usual victims” of violence and abuse,
[64]
 nonetheless, it was eventually agreed that men be denied
protection under the same measure. We quote pertinent portions of
the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of the
household, including children or the husband, they fear that this
would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the
spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind
of observation?
Senator Estrada. Yes, Mr. President, there is this group of women
who call themselves “WIIR” Women in Intimate Relationship. They
do not want to include men in this domestic violence. But plenty of
men are also being abused by women. I am playing safe so I placed
here members of the family, prescribing penalties therefor and
providing protective measures for victims. This includes the men,
children, live-in, common-law wives, and those related with the
family.[65]
xxxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion
whether to limit this to women and not to families which was the
issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I
remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during
the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the
measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women who
have not had the opportunity to file a case against their spouses, their
live-in partners after years, if not decade, of battery and abuse. If we
broaden the scope to include even the men, assuming they can at all
be abused by the women or their spouses, then it would not equalize
the already difficult situation for women, Mr. President.
I think that the sponsor, based on our earlier conversations, concurs
with this position. I am sure that the men in this Chamber who love
their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are,
we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that
he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee
came up with this bill because the family members have been
included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While
women are most likely the intended victims, one reason incidentally
why the measure focuses on women, the fact remains that in some
relatively few cases, men also stand to be victimized and that
children are almost always the helpless victims of violence. I am
worried that there may not be enough protection extended to other
family members particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less, addresses the
special needs of abused children. The same law is inadequate.
Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the
same protection to men, fearing that they may use this law to justify
their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our
courts which give credence to evidentiary support and cannot just
arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family relations
and to protect the family as the basic social institution. Though I
recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights
and dignity of both husband and wife and their immediate family
members, particularly children.
While I prefer to focus mainly on women, I was compelled to
include other family members as a critical input arrived at after a
series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the
Floor. The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized. Senator Sotto. I presume that the effect of the proposed
amendment of
Senator Legarda would be removing the “men and children” in this
particular bill and focus specifically on women alone. That will be
the net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa “Loi” Ejercito
Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if
she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President. The
President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale
used by the distinguished proponent of the amendment. As a matter
of fact, I tend to agree. Kung may maaabuso, mas malamang iyong
babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang
magulpi iyan. Okey lang iyan. But I cannot agree that we remove the
children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much
abused. As a matter of fact, it is not limited to minors. The abuse is
not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their
mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this
particular measure will update that. It will enhance and hopefully
prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the
aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND
CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There
being none, the amendment, as amended, is approved. [66]
It is settled that courts are not concerned with the wisdom, justice,
policy, or expediency of a statute.[67] Hence, we dare not venture into
the real motivations and wisdom of the members of Congress in
limiting the protection against violence and abuse under R.A. 9262
to women and children only. No proper challenge on said grounds
may be entertained in this proceeding. Congress has made its choice
and it is not our prerogative to supplant this judgment. The choice
may be perceived as erroneous but even then, the remedy against it is
to seek its amendment or repeal by the legislative. By the principle of
separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law. [68]
We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
R.A. 9262 does not violate the
guaranty of equal protection
of the laws.
Equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union[69] is instructive:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state. It
is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not
prohibit legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally
to each member of the class. This Court has held that the standard
is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find
that R.A. 9262 is based on a valid classification as shall hereinafter
be discussed and, as such, did not violate the equal protection clause
by favoring women over men as victims of violence and abuse to
whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact
that women are more likely than men to be victims of violence; and
the widespread gender bias and prejudice against women all make
for real differences justifying the classification under the law. As
Justice McIntyre succinctly states, “the accommodation of
differences ... is the essence of true equality.” [70]
A. Unequal power relationship between men and women   use force on members of the family under his control. I quote the
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with
the unequal power relationship between women and
men otherwise known as “gender-based violence”. Societal norms
and traditions dictate people to think men are the leaders, pursuers,
providers, and take on dominant roles in society while women are
nurturers, men's companions and supporters, and take on subordinate
roles in society. This perception leads to men gaining more power
over women. With power comes the need to control to retain that
power. And VAW is a form of men's expression of controlling
women to retain power.[71]
The United Nations, which has long recognized VAW as a human
rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993
stating that “violence against women is a manifestation
of historically unequal power relations between men and women,
which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of
women, and that violence against women is one of the crucial social
mechanisms by which women are forced into subordinate positions,
compared with men.”[72]
Then Chief Justice Reynato S. Puno traced the historical and social
context of gender-based violence and developments in advocacies to
eradicate VAW, in his remarks delivered during the Joint Launching
of R.A. 9262 and its Implementing Rules last October 27, 2004, the
pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right to
early studies:
Traditions subordinating women have a long history rooted in
patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they
were treated as property.
The Roman concept of patria potestas allowed the husband to beat,
or even kill, his wife if she endangered his property right over her.
Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over
women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one was
the husband. However, in the late 1500s and through the entire
1600s, English common law began to limit the right of husbands to
chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no
thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights
to chastise wives or inflict corporeal punishment ceased. Even then,
the preservation of the family was given more importance than
preventing violence to women.
The metamorphosis of the law on violence in the United States
followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a
stick, to pull her hair, choke her, spit in her face or kick her about the
floor, or to inflict upon her like indignities, is not now acknowledged
by our law... In person, the wife is entitled to the same protection of
the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became more
organized. The temperance leagues initiated it. These leagues had a
simple focus. They considered the evils of alcoholism as the root
cause of wife abuse. Hence, they demonstrated and picketed saloons,
bars and their husbands' other watering holes. Soon, however, their
crusade was joined by suffragette movements, expanding the
liberation movement's agenda. They fought for women's right to
vote, to own property, and more. Since then, the feminist movement
was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less than
the United States Supreme Court, in 1992 case Planned Parenthood
v. Casey, noted:
In an average 12-month period in this country, approximately two
million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as “marked
underestimates,” because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude
the very poor, those who do not speak English well, and women who
are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, “researchers on family violence
agree that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women per
year.”
Studies on prevalence suggest that from one-fifth to one-third of all
women will be physically assaulted by a partner or ex-partner during
their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many
of these incidents involve sexual assault... In families where wife
beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical
violence is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their abusers,
perhaps because they perceive no superior alternative...Many abused
women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent Federal
Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by
their male partners.
Finally in 1994, the United States Congress enacted the Violence
Against Women Act.
In the International front, the women's struggle for equality was no
less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination
Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of women have
been regularly held in Mexico City, Copenhagen, Nairobi and
Beijing. The UN itself established a Commission on the Status of
Women.
The Philippines has been in cadence with the half – and full – steps
of all these women's movements. No less than Section 14, Article II
of our 1987 Constitution mandates the State to recognize the role of
women in nation building and to ensure the fundamental equality
before the law of women and men. Our Senate has ratified the
CEDAW as well as the Convention on the Rights of the Child and its
two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled “An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefor and for other Purposes.”
(Citations omitted)
B. Women are the “usual” and “most likely”
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official
statistics on violence against women and children show that –
x x x physical injuries had the highest number of cases at 5,058 in
2002 representing 55.63% of total cases reported (9,903). And for
the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of
women in especially difficult circumstances served by the
Department of Social Welfare and Development (DSWD) for the
year 2002, there are 1,417 physically abused/maltreated cases out of
the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of a
total number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were committed
by the women's intimate partners such as their husbands and live-in Seduction 62 19 29 30 19 19 25 15
partners.[73]
Concubinage 121 102 93 109 109 99 158 128
Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an eight- RA 9208 17 11 16 24 34 152 190 62
year period from 2004 to August of 2011 with violations under R.A.
Abduction 29 16 34 23 28 18 25 22
9262 ranking first among the different VAW categories since its
implementation in 2004,[74] thus: /Kidnapping

Unjust 90 50 59 59 83 703 183 155

Table 1. Annual Comparative Statistics on Violence Against Women, Vexation
2004 - 2011*
Reported 2004 2005 2006 2007 2008 2009 2010 2011 Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948
Cases
*2011 report covers only from January to August
Rape 997 927 659 837 811 770 1,042 832
Source: Philippine National Police – Women and Children
Incestuous 38 46 26 22 28 27 19 23 Protection Center (WCPC)
Rape

Attempted 194 148 185 147 204 167 268 201 On the other hand, no reliable estimates may be obtained on
domestic abuse and violence against men in the Philippines because
Rape
incidents thereof are relatively low and, perhaps, because many men
Acts of 580 536 382 358 445 485 745 625 will not even attempt to report the situation. In the United Kingdom,
Lasciviousness 32% of women who had ever experienced domestic violence did so
four or five (or more) times, compared with 11% of the smaller
Physical 3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588 number of men who had ever experienced domestic violence; and
Injuries women constituted 89% of all those who had experienced 4 or more
incidents of domestic violence.[75] Statistics in Canada show that
Sexual 53 37 38 46 18 54 83 63 spousal violence by a woman against a man is less likely to cause
Harassment injury than the other way around (18 percent versus 44 percent).
Men, who experience violence from their spouses are much less
RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021 likely to live in fear of violence at the hands of their spouses, and
much less likely to experience sexual assault. In fact, many cases of
Threats 319 223 199 182 220 208 374 213 physical violence by a woman against a spouse are in self-defense or
the result of many years of physical or emotional abuse. [76]
While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render
R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring
drivers of animal-drawn vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or
alleys, said ordinance was challenged as violative of the guaranty of
equal protection of laws as its application is limited to owners and
drivers of vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason
that, while there may be non-vehicle-drawing animals that also
traverse the city roads, “but their number must be negligible and
their appearance therein merely occasional, compared to the rig-
drawing ones, as not to constitute a menace to the health of the
community.”[77] The mere fact that the legislative classification may
result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for regulation
by law produces inequality in some degree, but the law is not thereby
rendered invalid.[78]
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently and
less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending
the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He
stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to “double victimization” – first
at the hands of the offender and then of the legal system. [79]
Our own Senator Loi Estrada lamented in her Sponsorship Speech
for Senate Bill No. 2723 that “(w)henever violence occurs in the
family, the police treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant brings the case
to the prosecutor, the latter is hesitant to file the complaint for fear
that it might later be withdrawn. This lack of response or reluctance
to be involved by the police and prosecution reinforces the
escalating, recurring and often serious nature of domestic
violence.”[80]
Sadly, our own courts, as well, have exhibited prejudices and biases
against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the complainant in
a petition for TPO and PPO under R.A. 9262, calling her as “only a
live-in partner” and presenting her as an “opportunist” and a
“mistress” in an “illegitimate relationship.” Judge Amila even called
her a “prostitute,” and accused her of being motivated by “insatiable
greed” and of absconding with the contested property. [81] Such
remarks betrayed Judge Amila's prejudices and lack of gender
sensitivity.
The enactment of R.A. 9262 aims to address the discrimination
brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women
does not discriminate against men.[82] Petitioner's contention,
[83]
 therefore, that R.A. 9262 is discriminatory and that it is an “anti-
male,” “husband-bashing,” and “hate-men” law deserves scant
consideration. As a State Party to the CEDAW, the Philippines
bound itself to take all appropriate measures “to modify the social
and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women.”[84] Justice Puno correctly pointed out that “(t)he paradigm
shift changing the character of domestic violence from a private
affair to a public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the judges.” [85]
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose
of R.A. 9262, which is to address violence committed against women
and children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State
values the dignity of women and children and guarantees full respect
for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from
violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination
Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a
party.
In 1979, the U.N. General Assembly adopted the CEDAW, which
the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.[86]  This Convention mandates that
State parties shall accord to women equality with men before the
law[87] and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations on the basis of equality of men and women. [88]  The
Philippines likewise ratified the Convention on the Rights of the
Child and its two protocols.[89] It is, thus, bound by said Conventions
and their respective protocols.
III. The classification is not limited to existing 
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing
conditions when it was promulgated, but to future conditions as well,
for as long as the safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer
violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom
the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical
harm;
B. "Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman
or her child as a sex object, making demeaning and sexually
suggestive remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene publications and
indecent shows or forcing the woman or her child to do indecent acts
and/or make films thereof, forcing the wife and mistress/lover to live
in the conjugal home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim to engage in any
sexual activity by force, threat of force, physical or other harm or
threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or
likely to cause mental or emotional suffering of the victim such as
but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and
mental infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in
any form or to witness abusive injury to pets or to unlawful or
unwanted deprivation of the right to custody and/or visitation of
common children.
D. "Economic abuse" refers to acts that make or attempt to make a
woman financially dependent which includes, but is not limited to
the following:
1. withdrawal of financial support or preventing the victim from
engaging in any legitimate profession, occupation, business or
activity, except in cases wherein the other spouse/partner objects on
valid, serious and moral grounds as defined in Article 73 of the
Family Code;
2. deprivation or threat of deprivation of financial resources and the
right to the use and enjoyment of the conjugal, community or
property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely
controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the dimensions
and
dynamics of battery. The acts described here are also found in the
U.N. Declaration on the Elimination of Violence Against Women.
[90]
 Hence, the argument advanced by petitioner that the definition of
what constitutes abuse removes the difference between violent action
and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need not
guess at its meaning nor differ in its application. [91] Yet, petitioner
insists[92] that phrases like “depriving or threatening to deprive the
woman or her child of a legal right,” “solely controlling the conjugal
or common money or properties,” “marital infidelity,” and “causing
mental or emotional anguish” are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed that the
“vagueness” doctrine merely requires a reasonable degree of
certainty for the statute to be upheld – not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes
and bounds of the statute are clearly delineated. An act will not be
held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.[93]
There is likewise no merit to the contention that R.A. 9262 singles
out the husband or father as the culprit. As defined above, VAWC
may likewise be committed “against a woman with whom the person
has or had a sexual or dating relationship.” Clearly, the use of the
gender-neutral word “person” who has or had a sexual or dating
relationship with the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related or
connected to the victim by marriage, former marriage, or a sexual or
dating relationship, it does not preclude the application of
the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,[94] the parents-in-law of
Sharica Mari L. Go- Tan, the victim, were held to be proper
respondents in the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had community of design and
purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally
and physically.
R.A. 9262 is not violative of the due 
process clause of the Constitution.  
Petitioner bewails the disregard of R.A. 9262, specifically in the
issuance of POs, of all protections afforded by the due process clause
of the Constitution. Says he: “On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is
stripped of family, property, guns, money, children, job, future
employment and reputation, all in a matter of seconds, without an
inkling of what happened.”[95]
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or household
members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability
to regain control of their life.[96]
“The scope of reliefs in protection orders is broadened to ensure that
the victim or offended party is afforded all the remedies necessary to
curtail access by a perpetrator to the victim. This serves to safeguard
the victim from greater risk of violence; to accord the victim and any
designated family or household member safety in the family
residence, and to prevent the perpetrator from committing acts that
jeopardize the employment and support of the victim. It also enables
the court to award temporary custody of minor children to protect the
children from violence, to prevent their abduction by the perpetrator
and to ensure their financial support.”[97]
The rules require that petitions for protection order be in writing,
signed and verified by the petitioner[98] thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since
“time is of the essence in cases of VAWC if further violence is to be
prevented,”[99] the court is authorized to issue ex parte a TPO after
raffle but before notice and hearing when the life, limb or property of
the victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the immediate
and imminent danger of VAWC or to prevent such violence, which
is about to recur.[100]
There need not be any fear that the judge may have no rational basis
to issue an ex parte order. The victim is required not only to verify
the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.[101]
The grant of a TPO ex parte cannot, therefore, be challenged as
violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the
defendant to abscond or dispose of his property,[102] in the same way,
the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if
notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities
of protecting vital public interests,[103] among which is protection of
women and children from violence and threats to their personal
safety and security.
It should be pointed out that when the TPO is issued ex parte, the
court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the respondent by the
court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent.[104]
Where no TPO is issued ex parte, the court will nonetheless order the
immediate issuance and service of the notice upon the respondent
requiring him to file an opposition to the petition within five (5) days
from service. The date of the preliminary conference and hearing on
the merits shall likewise be indicated on the notice. [105]
The opposition to the petition which the respondent himself shall
verify, must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should
not be issued.[106]
It is clear from the foregoing rules that the respondent of a petition
for protection order should be apprised of the charges imputed to him
and afforded an opportunity to present his side. Thus, the fear of
petitioner of being “stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened” is a mere product of
an overactive imagination. The essence of due process is to be found
in the reasonable opportunity to be heard and submit any evidence
one may have in support of one's defense. "To be heard" does not
only mean verbal arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of procedural
due process.[107]
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of
the TPO to allow him visitation rights to his children. Still, the trial
court in its Order dated September 26, 2006, gave him five days (5)
within which to show cause why the TPO should not be renewed or
extended. Yet, he chose not to file the required comment arguing that
it would just be an “exercise in futility,” conveniently forgetting that
the renewal of the questioned TPO was only for a limited period (30
days) each time, and that he could prevent the continued renewal of
said order if he can show sufficient cause therefor. Having failed to
do so, petitioner may not now be heard to complain that he was
denied due process of law.
Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a “blank check”
issued to the wife to claim any property as her conjugal home. [108]
The wording of the pertinent rule, however, does not by any stretch
of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection
order shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the
offended party, regardless of ownership of the residence, either
temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things
and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily for
the purpose of protecting the latter. Such removal and exclusion may
be permanent only where no property rights are violated. How then
can the private respondent just claim any property and appropriate it
for herself, as petitioner seems to suggest?
The non-referral of a VAWC case to a mediator is justified.
Petitioner argues that “by criminalizing run-of-the-mill arguments,
instead of encouraging mediation and counseling, the law has done
violence to the avowed policy of the State to “protect and strengthen
the family as a basic autonomous social institution.” [109]
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not
refer the case or any issue thereof to a mediator. The reason behind
this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows: [110]
This section prohibits a court from ordering or referring parties to
mediation in a proceeding for an order for protection. Mediation is a
process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at
hand. Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of violence
implies that the victim is somehow at fault. In addition, mediation of
issues in a proceeding for an order of protection is problematic
because the petitioner is frequently unable to participate equally with
the person against whom the protection order has been sought.
(Emphasis supplied)
There is no undue delegation of judicial 
power to barangay officials.  
Petitioner contends that protection orders involve the exercise of
judicial power which, under the Constitution, is placed upon the
“Supreme Court and such other lower courts as may be established
by law” and, thus, protests the delegation of power to barangay
officials to issue protection orders.[111] The pertinent provision reads,
as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and
How.
– Barangay Protection Orders (BPOs) refer to the protection order
issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act.
A Punong Barangay who receives applications for a BPO shall issue
the protection order to the applicant on the date of filing after ex
partedetermination of the basis of the application. If the Punong
Barangay is unavailable to act on the application for a BPO, the
application shall be acted upon by any available Barangay Kagawad.
If the BPO is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay Kagawad that
the Punong Barangay was unavailable at the time of the issuance of
the BPO. BPOs shall be effective for fifteen (15) days. Immediately
after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its
personal service.
The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
[112]
 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying
the laws into practical operation and enforcing their due
observance."[113]
As clearly delimited by the aforequoted provision, the BPO issued by
the Punong Barangay or, in his unavailability, by any
available Barangay Kagawad, merely orders the perpetrator to desist
from (a) causing physical harm to the woman or her child; and (2)
threatening to cause the woman or her child physical harm. Such
function of the Punong Barangay is, thus, purely executive in nature,
in pursuance of his duty under the Local Government Code to
“enforce all laws and ordinances,” and to “maintain public order in
the barangay.”[114]
We have held that “(t)he mere fact that an officer is required by law
to inquire into the existence of certain facts and to apply the law
thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an
exercise of judicial powers.”[115]
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding “whether there is reasonable
ground to believe that an offense has been committed and the
accused is probably guilty thereof,” the Punong Barangay must
determine reasonable ground to believe that an imminent danger of
violence against the woman and her children exists or is about to
recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the
issuance of a BPO.
We need not even belabor the issue raised by petitioner that since
barangay officials and other law enforcement agencies are required
to extend assistance to victims of violence and abuse, it would be
very unlikely that they would remain objective and impartial, and
that the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent Villarama, Jr., Perez, Mendoza, and Reyes, JJ., concur.
with their duty to enforce the law and to maintain peace and order. Leonardo-De Castro, Abad, and Leonen, JJ., see separate concurring
opinion.
Conclusion Brion, J., see concurring opinion.
Peralta, J., on official leave.
Before a statute or its provisions duly challenged are voided, an
unequivocal breach otor a clear conflict with the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other *
On official leave.
words, the grounds for nullity must be beyond reasonable
doubt. [116] In the instant case, however, no concrete evidence and  "Philippines still top Christian country in Asia, 5th in world,"
[1]

convincing arguments were presented by petitioner to warrant a Philippine Daily Inquirer, December 21, 2011.
declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal [2]
 Ephesians 5:25-28.
executive department. As we said in Estrada v. Sandiganbayan,
[117]
 courts must assume that the legislature is ever conscious of the  RATIONALE OF THE PROPOSED RULE ON VIOLENCE
[3]

borders and edges of its plenary powers, and passed laws with full AGAINST WOMEN AND THEIR CHILDREN, citing statistics
knowledge of the facts and for the purpose of promoting what is furnished by the National Commission on the Role of Filipino
right and advancing the welfare of the majority. Women.

We reiterate here Justice Puno's observation that "the history of the [4]
 Id.
women's movement against domestic violence shows that one of its
most difficult struggles was the fight against the violence oflaw [5]
 Section 3(a), R.A. 9262.
itself. If we keep that in mind, law will not again be a hindrance to
the struggle of women for equality but will be its [6]
 Rollo, pp. 63-83.
fulfillment."[118] Accordingly, the constitutionality of R.A. 9262 is, as
it should be, sustained. [7]
 Id. at 66-67.

WHEREFORE, the instant petition for review on certiorari is [8]

 Id. at 64.
hereby DENIED for lack of merit.
[9]
 Id. at 67-68.
SO ORDERED.
[10]
 Id. at 68-70.
Sereno, C.J. Carpio, Velasco, Jr.,  Bersamin, Del Castillo,
  Id. at 70-71.
[11]

 Id. at 167-174.
[28]

 Id. at 72.
[12]

 Id. at 182.
[29]

 Id. at 73.
[13]

 Id. at 183-184.
[30]

 Id. at 74.
[14]

 Id. at 185.
[31]

 Id. at 65-66.
[15]

 Id. at 186-187.
[32]

 Id. at 66.
[16]

 See Manifestation dated October 10, 2006. Id. at 188-189.

[33]

 Id. at 70.
[17]

 Id. at 104-137.
[34]

 Id. at 84-87.
[18]

 Id. at 151-152.
[35]

 Urgent Ex-Parte Motion for Renewal of Temporary Protection

[19]

Order (TPO) or Issuance of Modified TPO. Id. at 90-93.  Decision dated January 24, 2007. Penned by Associate Justice
[36]

Priscilla Baltazar-Padilla, with Associate Justices Arsenio J. Magpale

 Id. at 94-97.
[20]
and Romeo F. Barza, concurring. Id. at 47-57.

 Id. at 98-103.
[21]
 Id. at 60-61.
[37]

 Id. at 138-140.
[22]
 Petition, id. at 22.
[38]

 Order dated May 24, 2006. Id. at 148-149.

[23]
 ABS-CBN Broadcasting Corporation v. Philippine Multi-Media
[39]

System, Inc., G.R. Nos. 175769-70, January 19, 2009, 576 SCRA
 Id. at 154-166.
[24]
262, 289.

 Id. at 156.
[25]
 Philippine National Bank v. Palma, 503 Phil. 917, 932 (2005).
[40]

 Id. at 157.
[26]
 Petition, rollo, p. 24.
[41]

 Id. at 158-159.
[27]
 SEC. 5. Jurisdiction of Family Courts. - The Family Courts shall
[42]
have exclusive original jurisdiction to hear and decide the following
cases:  Korea Exchange Bank v. Hon. Rogelio C. Gonzales, 496 Phil.
[50]

127, 143-144 (2005); Spouses Sapugay v. CA, 262 Phil. 506, 513

xxxx (1990).

k) Cases of domestic violence against:  Sec. 8, Rule 6, 1997 Rules of Civil Procedure.
[51]

1) Women - which are acts of gender based violence that results, or

 Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
[52]
are likely to result in physical, sexual or psychological harm or
suffering to women; and other forms of physical abuse such as
 See People of the Philippine Islands and Hongkong & Shanghai
[53]
battering or threats and coercion which violate a woman's
Banking Corporation v. Vera, 65 Phil 199 (1937); Philippine
personhood, integrity and freedom movement; and
Coconut Producers Federation, Inc. (COCOFED) v. Republic, G.R.
Nos. 177857-58, January 24, 2012, 663 SCRA 514, 594.
2) Children - which include the commission of all forms of abuse,
neglect, cruelty, exploitation, violence, and discrimination and all
 Recreation and Amusement Association of the Philippines v. City
[54]
other conditions prejudicial to their development.
of Manila, 100 Phil 950, 956 (1957).
 Sec. 17, R.A. 8369.
[43]

 Secs. 22 and 31, A.M. No. 04-10-11-SC.

[55]

 Manalo v. Mariano, 161 Phil. 108, 120 (1976).

[44]

 Sec. 26 (b), A.M. No. 04-10-11-SC.

[56]

 Planters Products, Inc. v. Fertiphil Corporation, G.R. No.

[45]

166006, March 14, 2008, 548 SCRA 485, 504.  Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 (1980).
[57]

 Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135,
[46]  27 L.Ed.2d 669 (1971), cited in The Executive Secretary v. Court
[58]

140. of Appeals, 473 Phil. 27, 56-57 (2004).

 Planters Products, Inc. v. Fertiphil Corporation, supra note 45, at

[47]  Rollo, pp. 214-240, 237.
[59]

505, citing Mirasol v. CA, 403 Phil. 760 (2001).

 Petition, id. at 26-27.
[60]

 G.R. Nos. L-18128 & L-18672, December 26, 1961, 3 SCRA

[48]

696, 703-704.  An Act Defining Violence Against Women and Members of the
[61]

Family, Prescribing Penalties Therefor, Providing for Protective

 RATIONALE OF THE PROPOSED RULES ON VIOLENCE
[49] Measures for Victims and for Other Purposes.
AGAINST WOMEN AND THEIR CHILDREN.
  Congressional Records, Vol. III, No. 45, December 10, 2003, p.
[62]
Against Filipino Women,” (visited October 12, 2012).
27.
 Women's Aid, “Who are the victims of domestic violence?,”
[75]

 Id. at 25.
[63]
citing Walby and Allen, 2004,

 Id. at 27.
[64]
 Toronto District School Board, Facts and Statistics (visited
[76]

November 16, 2012).

 Id. at 43-44.
[65]

 People v. Solon, 110 Phil. 39, 41 (1960).

[77]

 Congressional Records, Vol. III, No. 51, January 14, 2004, pp.
[66]

141-147.  Victoriano v. Elizalde Rope Workers' Union, supra note 69, 90.

[78]

 Lawyers Against Monopoly and Poverty (LAMP) v. The

[67]
 Biden, Jr., Joseph R., “The Civil Rights Remedy of the Violence
[79]

Secretary of Budget and Management, G.R. No. 164987, April 24, Against Women Act: A Defense,” 37 Harvard Journal on Legislation
2012, 670 SCRA 373, 391. 1 (Winter, 2000).

 Garcia v. Commission on Elections, G.R. No. 111511, October 5,

[68]
 Congressional Records, Vol. III, No. 45, December 10, 2003, pp.
[80]

1993, 227 SCRA 100, 113-114. 22-23.

 158 Phil. 60, 86-87 (1974).

[69]
 Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 2011, 645
[81]

SCRA 1, 8.
 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143,
[70]

p. 169.  “General recommendation No. 25, on article 4, paragraph 1, of

[82]

the Convention on the Elimination of All Forms of Discrimination

 Philippine Commission on Women, National Machinery for
[71]
against Women, on temporary special measures” (visited January 4,
Gender Equality and Women's Empowerment, “Violence Against 2013).
Women (VAW),” (visited November 16,2012).
 Petition, rollo, p. 27.
[83]

 (visited November 16, 2012).

[72]

 Article 5(a), CEDAW.

[84]

 As reported by Senator Loi Estrada in her Sponsorship Speech,

[73]

Congressional Records, Vol. III, No. 45, December 10, 2003, p. 22.  “The Rule on Violence Against Women and Their Children,”
[85]

Remarks delivered during the Joint Launching of R.A. 9262 and its
 Philippine Commission on Women, “Statistics on Violence
[74]
Implementing Rules last October 27, 2004 at the Session Hall of the
Supreme Court.  Cuartero v. CA, G.R. No. 102448, August 5, 1992, 212 SCRA
[102]

260, 265.
 Supra note 49.
[86]

 Laguna Lake Development Authority v. Court of Appeals, G.R.

[103]

 Article 15.
[87]
No. 110120, March 16, 1994, 231 SCRA 292, 307, citing Pollution
Adjudication Board v. Court of Appeals, G.R. No. 93891, March 11,
 Article 16.
[88]
1991, 195 SCRA 112.

 Supra note 49.

[89]
 Sec. 15, A.M. No. 04-10-11-SC.
[104]

 Supra note 49.

[90]
 Sec. 16, A.M. No. 04-10-11-SC.
[105]

 Estrada v. Sandiganbayan, 421 Phil 290, 351-352 (2001).

[91]
 Sec. 20, A.M. No. 04-10-11-SC.
[106]

 Petition, rollo, p. 35.
[92]
 Esperida v. Jurado, Jr., G.R. No. 172538, April 25, 2012, 671
[107]

SCRA 66, 74.

 Estrada v. Sandiganbayan , supra note 91, at 352-353.
[93]

 Petition, rollo, pp. 30-31.

[108]

 G.R. No. 168852, September 30, 2008, 567 SCRA 231.

[94]

 Id. at 36.
[109]

 Petition, rollo, p. 31.
[95]

 Supra note 49.

[110]

 Sec. 4 (o), A.M. No. 04-10-11-SC.

[96]

 Petition, rollo, pp. 130-131.

[111]

 Supra note 49.

[97]

 Sec. 1, Article VIII, 1987 Constitution.

[112]

 Sec. 7, A.M. No. 04-10-11-SC.

[98]

 Laurel v. Desierto, 430 Phil. 658 (2002).

[113]

 Supra note 49.

[99]

 People v. Tomaquin, 478 Phil. 885, 899 (2004), citing Section

[114]

[100]
 Id. 389, Chapter 3, Title One, Book III, Local Government Code of
1991, as amended.
[101]
 Supra note 85.
 Lovina and Montilla v. Moreno and Yonzon, 118 Phil 1401, 1406
[115]
(1963).
 Hacienda Luisita, Incorporated v. Presidential Agrarian Reform
[116]
Council, G.R. No. 171101, July 5, 20 II, 653 SCRA 154, 258.
 Supra note 91.
[117]
 Supra note 85.
[118]
CONCURRING OPINION
LEONARDO-DE CASTRO, J.:
I concur with the conclusion reached in the ponencia ably written by
the Honorable Estela Perlas-Bernabe. With due respect, however, I
submit that the test to determine an equal protection challenge
against the law, denying statutory remedies to men who are similarly
situated as the women who are given differential treatment in the
Jaw, on the basis of sex or gender, should be at the level of
intermediate scrutiny or middle-tier judicial scrutiny rather than
the rational basis test used in the ponencia of Justice Bernabe.
This Petition for Review on Certiorari assails: (1) the Decision dated
January 24, 2007 of the Court of Appeals in CA-G.R. CEB-SP No.
01698 dismissing the Petition for Prohibition with Injunction and
Temporary Restraining Order (Petition for Prohibition) which
questioned the constitutionality of Republic Act No. 9262, otherwise
known as the "Anti Violence Against Women and Their Children
Act of 2004," and sought a temporary restraining order and/or
injunction to prevent the implementation of the Temporary
Protection Order (TPO) and criminal prosecution of herein petitioner
Jesus A. Garcia under the law; and (2) the Resolution dated August
14, 2007, denying petitioner's Motion for Reconsideration of the said
Decision.
At the outset, it should be stressed that the Court of Appeals, in its
assailed Decision and Resolution, did not pass upon the issue of
constitutionality of Republic Act No. 9262 and instead dismissed the
Petition for Prohibition on technical grounds, as follows:
1. The constitutional issue was raised for the first time on appeal
before the Court of Appeals by petitioner and not at the earliest
opportunity, which should be before the Regional Trial Court (RTC),
Branch 41, Bacolod City, acting as a Family Court, where private
respondent Rosalie Garcia, wife of petitioner, instituted a Petition for
Temporary and Permanent Protection Order[s] [1] under Republic Act
No. 9262, against her husband, petitioner Jesus C. Garcia; and
2. The constitutionality of Republic Act No. 9262 can only be
questioned in a direct action and it cannot be the subject of a
collateral attack in a petition for prohibition, as the inferior court
having jurisdiction on the action may itself determine the
constitutionality of the statute, and the latter’s decision on the matter
may be reviewed on appeal and not by a writ of prohibition, as it was
held in People v. Vera.[2]
Hence, the Court of Appeals Decision and Resolution denied due
course to the Petition for Prohibition “for being fraught with fatal
technical infirmities” and for not being ripe for judicial review.
Nevertheless, four out of the five issues raised by the petitioner here
dealt with the alleged unconstitutionality of Republic Act No. 9262.
More accurately put, however, the Court of Appeals refrained from
touching at all those four substantive issues of constitutionality. The
Court of Appeals cannot therefore be faulted for any erroneous
ruling on the aforesaid substantive constitutional issues.
In this instant Petition for Review, the only issue directly in point
that can be raised against the Court of Appeals Decision and
Resolution is the first one cited as a ground for the appeal, which I
quote:
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE FIRST
OPPORTUNITY AND THAT, THE PETITION WAS A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.[3]
Under the circumstances, whether this Court should consider this
Petition for Review as a proper occasion to pass upon the
constitutionality of Republic Act No. 9262 shall be a separate subject
matter that is tackled below after the above-quoted first issue is
disposed of.
On the Propriety of Raising the Issue
of Constitutionality in a Summary 
Proceeding Before the RTC Designated
as a Family Court
Petitioner assails the Court of Appeals ruling that he should have
raised the issue of constitutionality in his Opposition[4] to private
respondent’s petition for protective orders pending before the RTC
for the following reasons:
1. The Rules on Violence Against Women and Children (A.M. No.
04-10-11-SC), particularly Section 20 thereof, expressly prohibit him
from alleging any counterclaim, cross-claim or third party claim, all
of which are personal to him and therefore with more reason, he
cannot impugn the constitutionality of the law by way of affirmative
defense.[5]
2. Since the proceedings before the Family Court are summary in
nature, its limited jurisdiction is inadequate to tackle the complex
issue of constitutionality.[6]
I agree with Justice Bernabe that the RTC, designated as a Family
Court, is vested with jurisdiction to decide issues of constitutionality
of a law, and that the constitutionality of Republic Act No. 9262 can
be resolved in a summary proceeding, in accordance with the rule
that the question of constitutionality must be raised at the earliest
opportunity, otherwise it may not be considered on appeal.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Republic Act No.
9262 provides:
Sec. 20. Opposition to Petition. – (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim,
cross-claim or third-party complaint, but any cause of action which
could be the subject thereof may be litigated in a separate civil
action. (Emphasis supplied.)
Petitioner cites the above provision, particularly paragraph (b)
thereof, as one of his grounds for not challenging the
constitutionality of Republic Act No. 9262 in his Opposition. The
error of such reasoning is that it treats “any cause of action”
mentioned in Section 20(b) as distinct from the “counterclaim, cross-
claim or third-party complaint” referred to in the said Section 20(b).
On the contrary, the language of said section clearly refers to a cause
of action that is the “subject” of the counterclaim, cross-claim, or
third-party complaint, which is barred and which may be litigated
in a separate civil action. The issue of constitutionality is not a
“cause of action” that is a subject of the aforementioned prohibited
pleadings. In fact, petitioner admitted that such prohibited pleadings
would allege “claims which are personal to him.”[7] Hence, Section
20(b) cannot even be invoked as a basis for filing the separate special
civil action of Petition for Prohibition before the Court of Appeals to
question the constitutionality of Republic Act No. 9262.
What obviously escapes petitioner’s understanding is that the
contents of the Opposition are not limited to mere refutations of the
allegations in the petition for temporary and permanent protection
order. While it is true that A.M. No. 04-10-11-SC requires the
respondent to file an Opposition and not an Answer, [8] it does not
prevent petitioner from challenging the constitutionality of Republic
Act No. 9262 in such Opposition. In fact, Section 20(a) directs
petitioner to state in his Opposition why a temporary or permanent
protection order should not be issued against him. This means that
petitioner should have raised in his Opposition all defenses available
to him, which may be either negative or affirmative. Section 5(b),
Rule 6 of the Rules of Court define negative and affirmative defenses
as follows:
(a) A negative defense is the specific denial of the material fact or
facts alleged in the pleading of the claimant essential to his cause or
causes of action.
(b) An affirmative defense is an allegation of a new matter which,
while hypothetically admitting the material allegations in the
pleading of the claimant, would nevertheless prevent or bar recovery
by him. The affirmative defenses include fraud, statute of limitations,
release, payment, illegality, statute of frauds, estoppel, former
recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance.
In Bayog v. Hon. Natino,[9] the respondent, in a complaint for
ejectment before the Municipal Circuit Trial Court (MCTC), raised
as one of his defenses, the MCTC’s lack of jurisdiction over the case
in light of the agricultural tenancy relationship between him and the
petitioner. The MCTC applied the Rule on Summary Procedure and
issued an Order stating that it could not take cognizance of the
Answer, for being filed belatedly. This Court ruled that while the
MCTC was correct in applying the Rule on Summary Procedure as
the complaint was one for ejectment, it should have met and ruled
squarely on the issue of jurisdiction, as there was nothing in the rules
that barred it from admitting the Answer. Hence, the MCTC should
have heard and received evidence for the precise purpose of
determining whether or not it possessed jurisdiction over the case. [10]
Similarly, the alleged unconstitutionality of Republic Act No. 9262
is a matter that would have prevented the trial court from granting
the petition for protection order against the petitioner. Thus,
petitioner should have raised it in his Opposition as a defense against
the issuance of a protection order against him.
For all intents and purposes, the Petition for Prohibition filed before
the Court of Appeals was precipitated by and was ultimately directed
against the issuance of the TPO, an interlocutory order, which under
Section 22(j) of A.M. No. 04-10-11-SC is a prohibited pleading. An
action questioning the constitutionality of the law also cannot be
filed separately even with another branch of the RTC. This is not
technically feasible because there will be no justiciable controversy
or an independent cause of action that can be the subject of such
separate action if it were not for the issuance of the TPO against the
petitioner. Thus, the controversy, subject of a separate action,
whether before the Court of Appeals or the RTC, would still have to
be the issuance of the TPO, which is the subject of another case in
the RTC.
Moreover, the challenge to the constitutionality of the law must be
raised at the earliest opportunity. In Dasmariñas Water District v.
Monterey Foods Corporation,[11] we said:
A law is deemed valid unless declared null and void by a competent
court; more so when the issue has not been duly pleaded in the trial
court. The question of constitutionality must be raised at the earliest
opportunity. x x x. The settled rule is that courts will not anticipate a
question of constitutional law in advance of the necessity of deciding
it. (Citation omitted.)
This Court held that such opportunity is in the pleadings before a
competent court that can resolve it, such that “if it is not raised in the
pleadings, it cannot be considered at the trial, and, if not considered
at the trial, it cannot be considered on appeal.” [12] The decision upon
the constitutional question is necessary to determine whether the
TPO should be issued against petitioner. Such question should have
been raised at the earliest opportunity as an affirmative defense in the
Opposition filed with the RTC handling the protection order
proceedings, which was the competent court to pass upon the
constitutional issue. This Court, in Drilon v. Lim,[13] held:
We stress at the outset that the lower court had jurisdiction to
consider the constitutionality of Section 187, this authority being
embraced in the general definition of the judicial power to
determine what are the valid and binding laws by the criterion of
their conformity to the fundamental law. Specifically, BP 129
vests in the regional trial courts jurisdiction over all civil cases in
which the subject of the litigation is incapable of pecuniary
estimation, even as the accused in a criminal action has the right
to question in his defense the constitutionality of a law he is
charged with violating and of the proceedings taken against him,
particularly as they contravene the Bill of Rights. Moreover,
Article X, Section 5(2), of the Constitution vests in the Supreme
Court appellate jurisdiction over final judgments and orders of lower
courts in all cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question. (Citation omitted, emphases ours.)
Furthermore, the filing of a separate action before the Court of
Appeals or the RTC for the declaration of unconstitutionality of
Republic Act No. 9262 would result to multiplicity of suits. It is
clear that the issues of constitutionality and propriety of issuing a
protection order raised by petitioner are inextricably intertwined.
Another court, whether it is an appellate court or a trial court, cannot
resolve the constitutionality question in the separate action without
affecting the petition for the issuance of a TPO. Bringing a separate
action for the resolution of the issue of constitutionality will result in
an unresolved prejudicial question to the validity of issuing a
protection order. If the proceedings for the protection order is not
suspended, it does create the danger of having inconsistent and
conflicting judgments between the two separate courts, whether of
the same or different levels in the judicial hierarchy. These two
judgments would eventually be the subject of separate motions for
reconsideration, separate appeals, and separate petitions for review
before this Court – the exact scenario the policy against multiplicity
of suits is avoiding. As we previously held, “the law and the courts
frown upon split jurisdiction and the resultant multiplicity of
actions.”[14]
It must be remembered that aside from the “earliest opportunity”
requirement, the court’s power of judicial review is subject to other
limitations. Two of which are the existence of an actual case or
controversy and standing. An aspect of the actual case or controversy
requirement is the requisite of “ripeness.” This is generally treated in
terms of actual injury to the plaintiff. Thus, a question is ripe for
adjudication when the act being challenged had a direct adverse
effect on the individual challenging it. This direct adverse effect on
the individual will also be the basis of his standing as it is necessary
that the person challenging the law must have a personal and
substantial interest in the case such that he has sustained, or will
sustain direct injury as a result of its enforcement. [15]
In this case, the petitioner’s challenge on the constitutionality of
Republic Act No. 9262 was on the basis of the protection order
issued against him. Verily, the controversy became ripe only when
he was in danger of or was directly adversely affected by the statute
mandating the issuance of a protection order against him. He derives
his standing to challenge the statute from the direct injury he would
sustain if and when the law is enforced against him. Therefore, it is
clear that the proper forum to challenge the constitutionality of the
law was before the RTC handling the protection order proceedings.
The filing of a separate action to question the constitutionality of the
law amounts to splitting a cause of action that runs counter to the
policy against multiplicity of suits.
Moreover, the filing of the Petition for Prohibition with the Court of
Appeals countenanced the evil that the law and the rules sought to
avoid. It caused the delay in the proceedings and inconvenience,
hardship and expense on the part of the parties due to the multiplicity
of suits between them at different court levels. The RTC where the
petition for protection orders is filed should be trusted, instead of
being doubted, to be able to exercise its jurisdiction to pass upon the
issue of constitutionality within the mandatory period set by the
rules.
In gist, there is no statutory, reglementary, or practical basis to
disallow the constitutional challenge to a law, which is sought to be
enforced, in a summary proceeding. This is particularly true
considering that the issue of a statute’s constitutionality is a question
of law which may be resolved without the reception of evidence or a
full-blown trial. Hence, said issue should have been raised at the
earliest opportunity in the proceedings before the RTC, Bacolod City
and for failure of the petitioner to do so, it cannot be raised in the
separate Petition for Prohibition before the Court of Appeals, as
correctly ruled by the latter, nor in a separate action before the RTC.
On the Court Resolving the Issue
of Constitutionality of Republic 
Act No. 9262
Notwithstanding my position that the Court of Appeals properly
dismissed the Petition for Prohibition because of petitioner’s failure
to raise the issue of constitutionality of Republic Act No. 9262 at the
earliest opportunity, I concur that the Court, in the exercise of its
sound discretion,[16] should still pass upon the said issue in the
present Petition. Notable is the fact that not only the petitioner, but
the private respondent as well,[17] pray that the Court resolve the
constitutional issue considering its novelty and paramount
importance. Indeed, when public interest requires the resolution of
the constitutional issue raised, and in keeping with this Court’s duty
of determining whether other agencies or even co-equal branches of
government have remained within the limits of the Constitution and
have not abused the discretion given them, the Court may brush
aside technicalities of procedure and resolve the constitutional issue.
[18]
Aside from the technical ground raised by petitioner in his first
assignment of error, petitioner questions the constitutionality of
Republic Act No. 9262 on the following grounds:
THE COURT OF APPEALS COMMITTED SERIOUS ERROR
IN FAILING TO CONCLUDE THAT R.A. NO. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE.
THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. NO. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. NO. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.[19]
On the Constitutional Right to Equal
Protection of the Laws
Petitioner challenges the constitutionality of Republic Act No. 9262
for making a gender-based classification, thus, providing remedies
only to wives/women and not to husbands/men. He claims that even
the title of the law, “An Act Defining Violence Against Women and
Their Children” is already pejorative and sex-discriminatory because
it means violence by men against women.[20] The law also does not
include violence committed by women against children and other
women. He adds that gender alone is not enough basis to deprive the
husband/father of the remedies under it because its avowed purpose
is to curb and punish spousal violence. The said remedies are
discriminatory against the husband/male gender. There being no
reasonable difference between an abused husband and an abused
wife, the equal protection guarantee is violated.
Pertinently, Section 1, Article III of the 1987 Constitution states:
No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal
protection of the laws. (Emphasis supplied.)
The above provision was lifted verbatim from the 1935 and 1973
Constitutions, which in turn was a slightly modified version of the
equal protection clause in Section 1, Amendment 14[21] of the United
States Constitution.
In 1937, the Court established in People v. Vera[22] the four-fold test
to measure the reasonableness of a classification under the equal
protection clause, to wit:
This basic individual right sheltered by the Constitution is a restraint
on all the three grand departments of our government and on the
subordinate instrumentalities and subdivisions thereof, and on many
constitutional powers, like the police power, taxation and eminent
domain. The equal protection of the laws, sententiously observes the
Supreme Court of the United States, “is a pledge of the protection of
equal laws.” Of course, what may be regarded as a denial of the
equal protection of the laws is a question not always easily
determined. No rule that will cover every case can be formulated.
Class legislation discriminating against some and favoring others is
prohibited. But classification on a reasonable basis, and not made
arbitrarily or capriciously, is permitted. The classification,
however, to be reasonable must be based on substantial
distinctions which make real differences; it must be germane to
the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the
class. (Citations omitted, emphasis supplied.)
In our jurisdiction, the standard and analysis of equal protection
challenges in the main have followed the foregoing “rational basis”
test, coupled with a deferential attitude to legislative classifications
and a reluctance to invalidate a law unless there is a showing of a
clear and unequivocal breach of the Constitution.[23]
However, over time, three levels of tests were developed, which are
to be applied in equal protection cases, depending on the subject
matter [24 ]involved:
1. Rational Basis Scrutiny – the traditional test, which
requires “only that government must not impose differences
in treatment except upon some reasonable differentiation
fairly related to the object of regulation.” Simply put, it
merely demands that the classification in the statute
reasonably relates to the legislative purpose. [25]
2. Intermediate Scrutiny – requires that the classification
(means) must serve an important governmental
objective (ends) and is substantially related to the
achievement of such objective. A classification based on sex
is the best-established example of an intermediate level of
review.[26]
3. Strict Scrutiny – requires that the classification serve
a compelling state interest and is necessary to achieve such
interest. This level is used when suspect classifications or
fundamental rights are involved.[27]
Recent Philippine jurisprudence has recognized the need to apply
different standards of scrutiny in testing the constitutionality of
classifications. In British American Tobacco v. Camacho,[28] this
Court held that since the case therein neither involved a suspect
classification nor impinged on a fundamental right, then “the rational
basis test was properly applied to gauge the constitutionality of the
assailed law in the face of an equal protection challenge.” [29] We
added:
It has been held that “in the areas of social and economic policy, a
statutory classification that neither proceeds along suspect lines nor
infringes constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.” Under
the rational basis test, it is sufficient that the legislative classification
is rationally related to achieving some legitimate State interest. x x x.
[30]
 (Citations omitted.)
Echoing the same principle, this Court, speaking through then Chief
Justice Puno in Central Bank (now Bangko Sentral ng Pilipinas)
Employees Association, Inc. v. Bangko Sentral ng Pilipinas, [31]stated:
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the
Constitution. The deference stops where the classification violates
a fundamental right, or prejudices persons accorded special
protection by the Constitution. When these violations arise, this
Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not
suffice.
xxxx
Under most circumstances, the Court will exercise judicial restraint
in deciding questions of constitutionality, recognizing the broad
discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the “rational basis” test, and the
legislative discretion would be given deferential treatment.
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against
persons favored by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak and watered
down view would call for the abdication of this Court’s solemn duty
to strike down any law repugnant to the Constitution and the rights it
enshrines. This is true whether the actor committing the
unconstitutional act is a private person or the government itself or
one of its instrumentalities. Oppressive acts will be struck down
regardless of the character or nature of the actor. (Citations omitted.)
This was reiterated in League of Cities of the Philippines v.
Commission on Elections,[32] and Ang Ladlad LGBT Party v.
Commission on Elections,[33] wherein the Court, although applying
the rational basis test, noted that there are tests, which are more
appropriate in other cases, especially those involving suspect classes
and fundamental rights. In fact, Chief Justice Puno expounded on
this in his Separate Concurring Opinion in the Ang Ladlad case. He
said that although the assailed resolutions therein were correctly
struck down, since the classification was based on gender or
sexual orientation, a quasi-suspect classification, a heightened
level of review should have been applied and not just the rational
basis test, which is the most liberal basis of judicial scrutiny.
Citing American authority, Chief Justice Puno continued to elucidate
on the three levels of scrutiny and the classes falling within each
level, to wit:
If a legislative classification disadvantages a “suspect class” or
impinges upon the exercise of a “fundamental right,” then the courts
will employ strict scrutiny and the statute must fall unless the
government can demonstrate that the classification has been
precisely tailored to serve a compelling governmental interest. Over
the years, the United States Supreme Court has determined that
suspect classes for equal protection purposes include classifications
based on race, religion, alienage, national origin, and ancestry. The
underlying rationale of this theory is that where legislation affects
discrete and insular minorities, the presumption of constitutionality
fades because traditional political processes may have broken down.
In such a case, the State bears a heavy burden of justification, and the
government action will be closely scrutinized in light of its asserted
purpose.
On the other hand, if the classification, while not facially invidious,
nonetheless gives rise to recurring constitutional difficulties, or if
a classification disadvantages a “quasi-suspect class,” it will be
treated under intermediate or heightened review. To survive
intermediate scrutiny, the law must not only further an important
governmental interest and be substantially related to that interest, but
the justification for the classification must be genuine and must not
depend on broad generalizations. Noteworthy, and of special interest
to us in this case, quasi-suspect classes include classifications
based on gender or illegitimacy.
If neither strict nor intermediate scrutiny is appropriate, then the
statute will be tested for mere rationality. This is a relatively
relaxed standard reflecting the Court’s awareness that the drawing
of lines which creates distinctions is peculiarly a legislative task and
an unavoidable one. The presumption is in favor of the classification,
of the reasonableness and fairness of state action, and of legitimate
grounds of distinction, if any such grounds exist, on which the State
acted.[34] (Citations omitted, emphases supplied.)

This case presents us with the most opportune time to adopt the
appropriate scrutiny in deciding cases where the issue of
discrimination based on sex or gender is raised. The assailed Section
3, among other provisions, of Republic Act No. 9262 provides:
SEC. 3. Definition of Terms. – As used in this Act:
(a) “Violence against women and their children” refers to any act or
a series of acts committed by any person against a woman who is his
wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering,
or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. x x x.
(Emphases supplied.)
The aforesaid law also institutionalized remedies such as the
issuance of protection orders in favor of women and children who
are victims of violence and prescribed public penalties for violation
of the said law.
Petitioner questions the constitutionality of Republic Act No. 9262
which denies the same protection orders to husbands who are victims
of wife-abuse. It should be stressed that under aforecited section of
said law violence may not only be physical or sexual but also
psychological and economic in nature.
The Honorable Justice Marvic Mario Victor F. Leonen in his
concurring opinion notes that “Husband abuse maybe an under
reported form of family violence.” While concurring with the
majority opinion, he opines as follows:
Nevertheless, in a future case more deserving of our attention, we
should be open to realities which may challenge the dominant
conception that violence in intimate relationships only happens to
women and children. This may be predominantly true, but even those
in marginal cases deserve fundamental constitutional and statutory
protection. We should be careful that in correcting historical and
cultural injustices, we may typecast all women as victims, stereotype
all men as tormentors or make invisible the possibility that in some
intimate relationships, men may also want to seek succor against acts
defined in Section 5 of Republic Act No. 9262 in an expeditious
manner.
Since statutory remedies accorded to women are not made available
to men, when the reality is that there are men, regardless of their
number, who are also suffering from domestic violence, the rational
basis test may be too wide and liberal to justify the statutory
classification which in effect allows different treatment of men who
are similarly situated. In the context of the constitutional policy to
“ensure the fundamental equality before the law of women and
men”[35] the level of scrutiny applicable, to test whether or not the
classification in Republic Act No. 9262 violates the equal protection
clause, is the middle-tier scrutiny or the intermediate standard of
judicial review.
To survive intermediate review, the classification in the challenged
law must (1) serve important governmental objectives, and (2)
be substantially related to the achievement of those objectives.[36]
Important and Essential Governmental 
Objectives: Safeguard Human Rights,
Ensure Gender Equality and Empower Women
Republic Act No. 9262 is a legislation that furthers important, in fact
essential, governmental objectives as enunciated in the law’s
Declaration of Policy, as quoted below:
SEC. 2. Declaration of Policy.- It is hereby declared that the State
values the dignity of women and children and guarantees full respect
for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from
violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the
Provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of all forms of discrimination Against
Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a
party.
This policy is in consonance with the constitutional
provisions, [37] which state:
SEC. 11. The State values the dignity of every human person and
guarantees full respect for human rights.
SEC. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. x x x.
By constitutional mandate, the Philippines is committed to ensure
that human rights and fundamental freedoms are fully enjoyed by
everyone. It was one of the countries that voted in favor of the
Universal Declaration of Human Rights (UDHR), which was a mere
two years after it gained independence from the United States of
America. In addition, the Philippines is a signatory to many United
Nations human rights treaties such as the Convention on the
Elimination of All Forms of Racial Discrimination, the International
Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, the Convention Against
Torture, and the Convention on the Rights of the Child, among
others.
As a signatory to the UDHR, the Philippines pledged itself to
achieve the promotion of universal respect for and observance of
human rights and fundamental freedoms,[38] keeping in mind the
standards under the Declaration. Among the standards under the
UDHR are the following:
Article 1. All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.
xxxx
Article 7. All are equal before the law and are entitled without
any discrimination to equal protection of the law. All are entitled
to equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.
Article 8. Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental
rights granted him by the constitution or by law. (Emphasis ours.)
The Declaration of Policy in Republic Act No. 9262 enunciates the
purpose of the said law, which is to fulfill the government’s
obligation to safeguard the dignity and human rights of women and
children by providing effective remedies against domestic violence
or physical, psychological, and other forms of abuse perpetuated by
the husband, partner, or father of the victim. The said law is also
viewed within the context of the constitutional mandate to ensure
gender equality, which is quoted as follows:
Section 14. The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law of
women and men.[39]
It has been acknowledged that “gender-based violence is a form of
discrimination that seriously inhibits women's ability to enjoy rights
and freedoms on a basis of equality with men.”[40] Republic Act No.
9262 can be viewed therefore as the Philippines’ compliance with
the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), which is committed to condemn
discrimination against women and directs its members to undertake,
without delay, all appropriate means to eliminate discrimination
against women in all forms both in law and in practice. [41]  Known as
the International Bill of Rights of Women,[42] the CEDAW is the
central and most comprehensive document for the advancement of
the welfare of women.[43] It brings the women into the focus of
human rights concerns, and its spirit is rooted in the goals of the UN:
to reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women.
[44]
 The CEDAW, in its preamble, explicitly acknowledges the
existence of extensive discrimination against women, and
emphasized that such is a violation of the principles of equality of
rights and respect for human dignity.
In addition, as a state party to the CEDAW, the Philippines is under
legal obligation to to ensure their development and advancement for
the improvement of their position from one of de jure as well as de
facto equality with men. [45] The CEDAW, going beyond the concept
of discrimination used in many legal standards and norms, focuses
on discrimination against women, with the emphasis that women
have suffered and are continuing to suffer from various forms of
discrimination on account of their biological sex.[46]
The Philippines’ accession to various international instruments
requires it to promote and ensure the observance of human rights and
“continually affirm its commitment to ensure that it pursues gender
equality in all aspects of the development process to eventually make
real, a gender- responsive society.” [47] Thus, the governmental
objectives of protecting human rights and fundamental freedoms,
which includes promoting gender equality and empowering
women, as mandated not only by our Constitution, but also by
commitments we have made in the international sphere, are
undeniably important and essential.
The Gender-Based Classification in Republic
Act No. 9262 is Substantially Related to the 
Achievement of Governmental Objectives
As one of the country’s pervasive social problems, violence against
women is deemed to be closely linked with the unequal power
relationship between women and men and is otherwise known as
“gender-based violence.” [48] Violent acts towards women has been
the subject of an examination on a historic world-wide perspective.
[49]
 The exhaustive study of a foreign history professor noted that
“[f]rom the earliest civilizations on, the subjugation of women, in the
form of violence, were facts of life,”[50] as three great bodies of
thought, namely: Judeo-Christian religious ideas; Greek philosophy;
and the Common Law Legal Code, which have influenced western
society’s views and treatment of women, all “assumed patriarchy as
natural; that is, male domination stemming from the view of male
superiority.”[51] It cited 18th century legal expert William Blackstone,
who explained that the common law doctrine of coverture reflected
the theological assumption that husband and wife were ‘one body’
before God; thus “they were ‘one person’ under the law, and that one
person was the husband,”[52] a concept that evidently found its way in
some of our Civil Code provisions prior to the enactment of the
Family Code.
Society and tradition dictate that the culture of patriarchy continue.
Men are expected to take on the dominant roles both in the
community and in the family. This perception naturally leads to men
gaining more power over women – power, which must necessarily be
controlled and maintained. Violence against women is one of the
ways men control women to retain such power.[53]
The enactment of Republic Act No. 9262 was in response to the
undeniable numerous cases involving violence committed against
women in the Philippines. In 2012, the Philippine National Police
(PNP) reported[54] that 65% or 11,531 out of 15,969 cases involving
violence against women were filed under Republic Act No. 9262.
From 2004 to 2012, violations of Republic Act No. 9262 ranked first
among the different categories of violence committed against
women. The number of reported cases showed an increasing trend
from 2004 to 2012, although the numbers might not exactly represent
the real incidence of violence against women in the country, as the
data is based only on what was reported to the PNP. Moreover, the
increasing trend may have been caused by the continuous
information campaign on the law and its strict implementation. [55]  issuance of protection orders and the granting of certain reliefs to
Nonetheless, statistics show that cases involving violence against
women are prevalent, while there is a dearth of reported cases
involving violence committed by women against men, that will
require legislature intervention or solicitous treatment of men.   grant an application for a temporary protection order (TPO) and
Preventing violence against women and children through their
availment of special legal remedies, serves the governmental
objectives of protecting the dignity and human rights of every
person, preserving the sanctity of family life, and promoting gender
equality and empowering women. Although there exists other laws
on violence against women[56] in the Philippines, Republic Act No.
9262 deals with the problem of violence within the family and
intimate relationships, which deserves special attention because it
occurs in situations or places where women and children should feel
most safe and secure but are actually not. The law provides the
widest range of reliefs for women and children who are victims of
violence, which are often reported to have been committed not by
strangers, but by a father or a husband or a person with whom the
victim has or had a sexual or dating relationship. Aside from filing a
criminal case in court, the law provides potent legal remedies to the
victims that theretofore were not available. The law recognizes, with
valid factual support based on statistics that women and children are
the most vulnerable victims of violence, and therefore need legal
intervention. On the other hand, there is a dearth of empirical basis to
anchor a conclusion that men need legal protection from violence
perpetuated by women.
The law takes into account the pervasive vulnerability of women and
children, and the seriousness and urgency of the situation, which, in
the language of the law result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic abuse
including threats of such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty.[57]Hence, the law permits the
women victims, even without a hearing. The law has granted
authority for barangayofficials to issue a protection order against the
offender, based on the victim’s application. The RTC may likewise
provide other reliefs, also on the mere basis of the application.
Despite the ex parte issuance of these protection orders, the
temporary nature of these remedies allow them to be availed of by
the victim without violating the offender’s right to due process as it
is only when a full-blown hearing has been done that a permanent
protection order may be issued. Thus, these remedies are suitable,
reasonable, and justified. More importantly, they serve the objectives
of the law by providing the victims necessary immediate protection
from the violence they perceive as threats to their personal safety and
security. This translates to the fulfillment of other governmental
objectives as well. By assuring the victims instant relief from their
situation, they are consequently empowered and restored to a place
of dignity and equality. Such is embodied in the purpose to be served
by a protection order, to wit:
SEC. 8. Protection Orders.- A protection order is an order issued
under this act for the purpose of preventing further acts of violence
against a woman or her child specified in Section 5 of this Act and
granting other necessary relief. The relief granted under a
protection order serve the purpose of safeguarding the victim
from further harm, minimizing any disruption in the victim’s
daily life, and facilitating the opportunity and ability of the
victim to independently regain control over her life. x x x.
(Emphasis supplied.)
In furtherance of the governmental objectives, especially that of
protecting human rights, violence against women and children under
this Act has been classified as a public offense, [58] making its
prosecution independent of the victim’s initial participation.
Verily, the classification made in Republic Act No. 9262 is
substantially related to the important governmental objectives of
valuing every person’s dignity, respecting human rights,
safeguarding family life, protecting children, promoting gender
equality, and empowering women.
The persistent and existing biological, social, and cultural differences
between women and men prescribe that they be treated differently
under particular conditions in order to achieve substantive
equality for women. Thus, the disadvantaged position of a woman as
compared to a man requires the special protection of the law, as
gleaned from the following recommendations of the CEDAW
Committee:
8. [T]he Convention requires that women be given an equal start and
that they be empowered by an enabling environment to achieve
equality of results. It is not enough to guarantee women treatment
that is identical to that of men. Rather, biological as well as socially
and culturally constructed differences between women and men
must be taken into account. Under certain circumstances, non-
identical treatment of women and men will be required in order
to address such differences. Pursuit of the goal of substantive
equality also calls for an effective strategy aimed at overcoming
underrepresentation of women and a redistribution of resources and
power between men and women.
9. Equality of results is the logical corollary of de facto or
substantive equality. These results may be quantitative and/or
qualitative in nature; that is, women enjoying their rights in various
fields in fairly equal numbers with men, enjoying the same income
levels, equality in decision-making and political influence,
and women enjoying freedom from violence.[59] (Emphases
supplied.)
The government’s commitment to ensure that the status of a woman
in all spheres of her life are parallel to that of a man, requires the
adoption and implementation of ameliorative measures, such as
Republic Act No. 9262. Unless the woman is guaranteed that the
violence that she endures in her private affairs will not be ignored by
the government, which is committed to uplift her to her rightful place
as a human being, then she can neither achieve substantive equality
nor be empowered.
The equal protection clause in our Constitution does not guarantee an
absolute prohibition against classification. The non-identical
treatment of women and men under Republic Act No. 9262 is
justified to put them on equal footing and to give substance to the
policy and aim of the state to ensure the equality of women and men
in light of the biological, historical, social, and culturally endowed
differences between men and women.
Republic Act No. 9262, by affording special and exclusive protection
to women and children, who are vulnerable victims of domestic
violence, undoubtedly serves the important governmental objectives
of protecting human rights, insuring gender equality, and
empowering women. The gender-based classification and the special
remedies prescribed by said law in favor of women and children are
substantially related, in fact essentially necessary, to achieve such
objectives. Hence, said Act survives the intermediate
review or middle-tier judicial scrutiny. The gender-based
classification therein is therefore not violative of the equal protection
clause embodied in the 1987 Constitution.
The Issuance of the TPO did not Violate  designated as the police power.[62]
Petitioner’s Right to Due Process
A protection order is issued under Republic Act No. 9262 for the
purpose of preventing further acts of violence against a woman or
her child. [60] The circumstances surrounding the availment thereof
are often attended by urgency; thus, women and child victims must
have immediate and uncomplicated access to the same. Hence,
Republic Act No. 9262 provides for the issuance of a TPO:
SEC. 15. Temporary Protection Orders. – Temporary Protection
Orders (TPOs) refers to the protection order issued by the court on
the date of filing of the application after ex parte determination that
such order should be issued. A court may grant in a TPO any, some
or all of the reliefs mentioned in this Act and shall be effective for
thirty (30) days. The court shall schedule a hearing on the issuance of
a PPO prior to or on the date of the expiration of the TPO. The court
shall order the immediate personal service of the TPO on the
respondent by the court sheriff who may obtain the assistance of law
enforcement agents for the service. The TPO shall include notice of
the date of the hearing on the merits of the issuance of a PPO.
The ex parte issuance of the TPO does not make it unconstitutional.
Procedural due process refers to the method or manner by which the
law is enforced. It consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and
competent tribunal. [61]  However, it is a constitutional commonplace
that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those involved
herein. Republic Act No. 9262 and its implementing regulations
were enacted and promulgated in the exercise of that pervasive,
sovereign power of the State to protect the safety, health, and general
welfare and comfort of the public (in this case, a particular sector
thereof), as well as the protection of human life, commonly
In Secretary of Justice v. Lantion, [63] the Court enumerated three
instances when notice and/or hearing may be dispensed with in
administrative proceedings:
These twin rights may, however, be considered dispensable in certain
instances, such as:
1. In proceedings where there is an urgent need for immediate
action, like the summary abatement of a nuisance per se
(Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63,
Local Government Code, B. P. Blg. 337), the padlocking of
filthy restaurants or theaters showing obscene movies or like
establishments which are immediate threats to public health
 and decency, and the cancellation of a passport of a person
sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is,
where the respondent is not precluded from enjoying the
right to notice and hearing at a later time without prejudice
to the person affected, such as the summary distraint and
levy of the property of a delinquent taxpayer, and the
replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the
right to exercise them had not been claimed.
The principles behind the aforementioned exceptions may also apply
in the case of the ex parte issuance of the TPO, although it is a
judicial proceeding. As mentioned previously, the urgent need for a
TPO is inherent in its nature and purpose, which is to immediately
provide protection to the woman and/or child victim/s against further
violent acts. Any delay in the issuance of a protective order may
possibly result in loss of life and limb of the victim. The issuing
judge does not arbitrarily issue the TPO as he can only do so if there
is reasonable ground to believe that an imminent danger of violence
against women and their children exists or is about to recur based on
the verified allegations in the petition of the victim/s. [64] Since the
TPO is effective for only thirty (30) days,[65] any inconvenience,
deprivation, or prejudice the person enjoined – such as the petitioner
herein – may suffer, is generally limited and temporary. Petitioner is
also not completely precluded from enjoying the right to notice and
hearing at a later time. Following the issuance of the TPO, the law
and rules require that petitioner be personally served with notice of
the preliminary conference and hearing on private respondent’s
petition for a Permanent Protection Order (PPO)[66] and that
petitioner submit his opposition to private respondent’s petition for
protections orders. [67] In fact, it was petitioner’s choice not to file an
opposition, averring that it would only be an “exercise in futility.”
Thus, the twin rights of notice and hearing were subsequently
afforded to petitioner but he chose not to take advantage of them.
Petitioner cannot now claim that the ex parte issuance of the TPO
was in violation of his right to due process.
There is No Undue Delegation of
Judicial Power to Barangay Officials
A Barangay Protection Order (BPO) refers to the protection order
issued by the Punong Barangay, or in his absence the Barangay
Kagawad, ordering the perpetrator to desist from committing acts of
violence against the family or household members particularly
women and their children.[68]  The authority of barangay officials to
issue a BPO is conferred under Section 14 of Republic Act No. 9262:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and
How. - Barangay Protection Orders (BPOs) refer to the protection
order issued by the Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5 (a) and (b) of this Act.
A Punong Barangay who receives applications for a BPO shall issue
the protection order to the applicant on the date of filing after ex
parte determination of the basis of the application. If the Punong
Barangay is unavailable to act on the application for a BPO, the
application shall be acted upon by any available Barangay Kagawad.
If the BPO is issued by a Barangay Kagawad the order must be
accompanied by an attestation by the Barangay Kagawad that
the Punong Barangay was unavailable at the time for the issuance of
the BPO. BPOs shall be effective for fifteen (15) days. Immediately
after the issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of the same on the
respondent, or direct any barangay official to effect is personal
service.

The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
Once more, the urgency of the purpose for which protection orders
under Republic Act No. 9262 are issued justifies the grant of
authority to barangay officials to issue BPOs. Barangayofficials live
and interact closely with their constituents and are presumably easier
to approach and more readily available than any other government
official. Their issuance of the BPO is but part of their official
executive function of enforcing all laws and ordinances within
their barangay[69] and maintaining public order in the barangay.[70] It
is true that the barangay officials’ issuance of a BPO under Republic
Act No. 9262 necessarily involves the determination of some
questions of fact, but this function, whether judicial or quasi-judicial,
are merely incidental to the exercise of the power granted by law.
[71]
 The Court has clarified that:
“The mere fact that an officer is required by law to inquire the
existence of certain facts and to apply the law thereto in order to
determine what his official conduct shall be and the fact that these
acts may affect private rights do not constitute an exercise of judicial
powers. Accordingly, a statute may give to non-judicial officers the
power to declare the existence of facts which call into operation its
provisions, and similarly may grant to commissioners and other
subordinate officers power to ascertain and determine appropriate
facts as a basis for procedure in the enforcement of particular laws.”
(11 Am. Jur., Const. Law, p. 950, sec. 235)[72]
Furthermore, while judicial power rests exclusively in the judiciary,
it may be conceded that the legislature may confer on administrative
boards or bodies, or even particular government officials, quasi-
judicial power involving the exercise of judgment and discretion, as
incident to the performance of administrative functions. But in so
doing, the legislature must state its intention in express terms that
would leave no doubt, as even such quasi-judicial prerogatives must
be limited, if they are to be valid, only to those incidental to or in
connection with the performance of administrative duties, which do
not amount to conferment of jurisdiction over a matter exclusively
vested in the courts.[73] In the case of a BPO, it is a mere provisional
remedy under Republic Act No. 9262, meant to address the pressing
need of the victims for instant protection. However, it does not take
the place of appropriate judicial proceedings and remedies that
provide a more effective and comprehensive protection to the victim.
In fact, under the Implementing Rules of Republic Act No. 9262, the
issuance of a BPO or the pendency of an application for a BPO shall
not preclude the victim from applying for, or the court from granting,
a TPO or PPO. Where a TPO has already been granted by any court,
the barangay official may no longer issue a BPO. [74] The same
Implementing Rules also require that within twenty-four (24) hours
after the issuance of a BPO, the barangay official shall assist the
victim in filing an application for a TPO or PPO with the nearest
court in the victim’s place of residence. If there is no Family Court
or RTC, the application may be filed in the Municipal Trial Court,
the Municipal Circuit Trial Court or the Metropolitan Trial Court. [75]
All things considered, there is no ground to declare Republic Act No.
9262 constitutionally infirm.
 Rollo, pp. 63-83.
[1]
 65 Phil. 56 (1937).
[2]
 Rollo, p. 22.
[3]
 Id. at 98-103.
[4]
  Id. at 23.
[5]
 Id. at 26.
[20]

 Id. at 24.
[6]
 All persons born or naturalized in the United States, and subject
[21]

to the jurisdiction thereof, are citizens of the United States and of the
 Id. at 309, Petitioner’s Memorandum.
[7]
State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
 Rationale of the Proposed Rule on Violence against Women and
[8]
United States; nor shall any State deprive any person of life, liberty,
their Children, 15th Salient Feature. or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
 327 Phil. 1019 (1996).
[9]

 Supra note 2 at 125-126.

[22]

[10]
 Id. at 1036-1037.
 Central Bank (now Bangko Sentral ng Pilipinas) Employees
[23]

[11]
 G.R. No. 175550, September 17, 2008, 565 SCRA 624, 637. Association, Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 583-
584 (2004).
[12]
 Matibag v. Benipayo, 429 Phil. 554, 578 (2002).
 Ang Ladlad LGBT Party v. Commission on Elections, G.R. No.
[24]

[13]
 G.R. No. 112497, August 4, 1994, 235 SCRA 135, 139-140. 190582, April 8, 2010, 618 SCRA 32, citing BERNAS, THE 1987
CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, pp.
 Presidential Commission on Good Government v. Peña, 243 Phil.
[14]
139-140 (2009).
93, 106 (1988).
 Central Bank (now Bangko Sentral ng Pilipinas) Employees
[25]

 Lawyers Against Monopoly and Poverty (LAMP) v. The Secretary

[15]
Association, Inc. v. Bangko Sentral ng Pilipinas, supra note 23.
of Budget and Management, G.R. No. 164987, April 24, 2012, 670
SCRA 373, 383-384.  Id.
[26]

[16]
 People v. Vera, supra note 2.  Id.
[27]

[17]
 Rollo, p. 237, Private Respondents’ Comment.  G.R. No. 163583, April 15, 2009, 585 SCRA 36.
[28]

[18]
 Matibag v. Benipayo, supra note 12 at 579.  Id. at 40.
[29]

[19]
 Rollo, p. 22.  Id. at 40-41.
[30]
  General Recommendation No. 25, CEDAW/par. 4 (2004).
[45]

 Supra note 23 at 597-600.

[31]

 Id., par. 5 (2004).

[46]

 G.R. Nos. 176951, 177499, and 178056, November 18, 2008, 571
[32]

SCRA 263.  http://pcw.gov.ph/international-commitments last visited on April

[47]

9, 2013.
 Supra note 24.
[33]

 http://pcw.gov.ph/focus-areas/violence-against-women last visited

[48]

 Id. at 93-95.
[34]
on April 10, 2013.

 1987 Constitution, Article II, Section 14.

[35]
 Historical Perspectives on Violence Against Women. November
[49]

2002.
 Central Bank (now Bangko Sentral ng Pilipinas) Employees
[36]

Association, Inc. v. Bangko Sentral ng Pilipinas, supra note 23 at  Vivian C. Fox, Ph.D. Journal of International Women’s Studies
[50]

586, citing Justice Marshall’s dissent in San Antonio Independent Vol. 4 #1, Historical Perspectives on Violence Against Women.
School District v. Rodriguez, 411 U.S. 1 (1973). November 2002. p. 20.

 1987 Constitution, Article II.

[37]
 Id. at 15.
[51]

 Universal Declaration of Human Rights.

[38]
 Id. at 19.
[52]

 1987 Constitution, Article II.

[39]
 http://pcw.gov.ph/focus-areas/violence-against-women last visited
[53]

on April 10, 2013.

 General Recommendation No. 19, CEDAW/par. 1 (1992).
[40]

 As Submitted by the Philippine Commission on Women.

[54]

 CEDAW, Article 2.
[41]

 http://pcw.gov.ph/statistics/201210/statistics-violence-against-
[55]

 http://pcw.gov.ph/international-commitments/cedaw last visited

[42]
filipino-women, last visited on March 18, 2013.
on April 9, 2013.
 Republic Act No. 3815, The Revised Penal Code; Republic Act
[56]

 CEDAW, Introduction.
[43]
No. 7877, The Anti-Sexual Harassment Act of 1995; Republic Act
No. 8353, The Anti-Rape Law of 1997; Republic Act No. 8505, The
 Id.
[44]
Rape Victims Assistance Act of 1998; Republic Act No. 6955;
Republic Act No. 9208, The Anti-Trafficking in Persons Act of
2003; Republic Act No. 8369: The Family Courts Act of 1997; and
Republic Act No. 9710, The Magna Carta of Women of 2009.  Lovina v. Moreno, 118 Phil. 1401, 1405 (1963).
[71]

 Republic Act No. 9262, Section 3.

[57]
 Id. at 1406.
[72]

 Id., Section 25.

[58]
 Miller v. Mardo, 112 Phil. 792, 802 (1961).
[73]

 General Recommendation No. 25, CEDAW/pars. 8-9 (2004).

[59]
 Section 14(g).
[74]

 Section 8.
[60]
 Section l4(d}.
[75]

 China Banking Corporation v. Lozada, G.R. No. 164919, July 4,

[61]

2008, 557 SCRA 177, 193.

 Pollution Adjudication Board v. Court of Appeals, G.R. No.

[62]

93891, March 11, 1991, 195 SCRA 112, 123. CONCURRING OPINION

 379 Phil. 165, 203-204 (2000).

[63]

BRION, J.:.
 A.M. No. 04-10-11-SC, Section 15(a).
[64]

I concur with the ponencia 's conclusion that Republic Act (R.A.)
 Id.
[65]
No. 9262 (An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims,
 Id., Section 15(b).
[66]
Prescribing Penalties Therefore and for Other Purposes)
is constitutional and does not violate the equal protection clause.
 Id., Section 15(c).
[67]
As traditionally viewed, the constitutional provision of equal
protection simply requires that similarly situated persons be treated
 Id., Section 4(p).
[68]
in the same way. It does not connote identity of rights among
individuals, nor does it require that every person is treated identically
 Section 389(b)(1), Chapter III, Title I, Book III of Republic Act
[69]
in all circumstances. It acts as a safeguard to ensure that State-drawn
No. 7160, otherwise known as The Local Government Code of 1991. distinctions among persons are based on reasonable classifications
and made pursuant to a proper governmental purpose. In short,
 Section 389(b)(3), Chapter III, Title I, Book III of The Local
[70]
statutory classifications arc not unconstitutional when shown to be
Government Code of 1991. reasonable and made pursuant to a legitimate government objective.

In my view, Congress has presented a reasonable classification that
focuses on women and children based on protective provisions that
the Constitution itself provides. Section 11, Article II of the
Constitution declares it a state policy to value the dignity of every
human person and guarantees full respect for human rights. Further,
under Section 14, Article II of the Constitution, the State recognizes
the role of women in nation building and ensures fundamental
equality before the law of women and men. These policies are given
purposeful meaning under Article XV of the Constitution on family,
which states:
Section I. The State recognizes the Filipino family as the foundation
of the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.
Section Marriage, as an inviolable social institution, is the foundation
of the family and shall be protected by the State.
Section 3. The State shall defend·
(1) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood;
(2) The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their
development[.]
From the terms of the law, I find it plain that Congress enacted R.A.
No. 9262 as a measure intended to strengthen the family. Congress
found that domestic and other forms of violence against women and
children contribute to the failure to unify and strengthen family ties,
thereby impeding the State’s mandate to actively promote the
family’s total development. Congress also found, as a reality, that
women and children are more susceptible to domestic and other
forms of violence due to, among others, the pervasive bias and
prejudice against women and the stereotyping of roles within the
family environment that traditionally exist in Philippine society. On
this basis, Congress found it necessary to recognize the substantial
distinction within the family between men, on the one hand, and
women and children, on the other hand. This recognition,
incidentally, is not the first to be made in the laws as our law on
persons and family under the Civil Code also recognize, in various
ways, the distinctions between men and women in the context of
the family.[1]
To be sure, Congress has not been alone in addressing violence
committed against women and children as this move is “in keeping
with the fundamental freedoms guaranteed under the Constitution
and the Provisions of the Universal Declaration of Human Rights,
the convention on the Elimination of all forms of discrimination
Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a
party.”[2] The only question perhaps is whether the considerations
made in these international instruments have reason or basis for
recognition and active application in the Philippines.
I believe that the policy consideration Congress made in this regard
is not without basis in history and in contemporary Philippine society
so that Congress was acting well within its prerogative when it
enacted R.A. No. 9262 “to protect the family and its
members particularly women and children, from violence and threats
to their personal safety and security.”[3]
I consider, too, the statutory classification under R.A. No. 9262 to be
valid, and that the lowest level of scrutiny of review should be
applied in determining if the law has established a valid
classification germane to the Constitution’s objective to protect the
family by protecting its women and children members. In my view,
no need exists to further test the law’s validity from the perspective
of an expanded equal protection based on social justice. The
Constitution itself has made special mention of women and their role
in society (Article II) and the assistance and protection that must be
given to children irrespective of sex. It appears highly inconsistent to
me under this situation if the Court would impose a strict level of
scrutiny on government – the primary implementor of constitutional
policies – and lay on it the burden of establishing the validity of an
Act directly addressing violence against women and children.
My serious reservation on the use of an expanded equal protection
clause and in applying a strict scrutiny standard is, among others,
based on lack of necessity; we do not need these measures when we
can fully examine R.A. No. 9262’s constitutionality using the
reasonableness test. The family is a unit, in fact a very basic one, and
it cannot operate on an uneven standard where measures beyond
what is necessary are extended to women and children as against the
man – the head of the family and the family provider. The use of an
expanded equal protection clause only stresses the concept of an
uneven equality that cannot long stand in a unit living at close
quarters in a situation of mutual dependency on one another. The
reasonableness test, on the other hand, has been consistently applied
to allow the courts to uphold State action as long as the action is
found to be germane to the purpose of the law, in this case to support
the unity and development of the family. If we are to deviate from
or to modify this established standard of scrutiny, we must do so
carefully and for strong justifiable reasons.
If we are to use a strict level of scrutiny of government action, we
must be aware of the risks that this system of review may open. A
very real risk is to open the possibility that our social legislations
will always be subject to heightened scrutiny. Are we sure of what
this approach entails for the government and for our society in the
long run? How will this approach affect the social legislation that our
society, particularly the most vulnerable members, need? What other
effects will a system of review – that regards governmental action as
illegal unless the government can actively justify the classifications it
has made in the course of pursuing its actions – have? These are the
questions that, in the long run, we have to contend with, and I hate
to provide an answer through a case that is not, on its face and
even in deeper reality, representative of the questions we are
asking or need to ask.
The cases of Central Bank Employees Assoc., Inc. v. Bangko Sentral
ng Pilipinas[4] and Serrano v. Gallant Maritime Services, Inc.
[5]
 demonstrate the Court’s application of a heightened sense of
scrutiny on social legislations. In Central Bank and Serrano, we held
that classifications in the law that result in prejudice to persons
accorded special protection by the Constitution require a stricter
judicial scrutiny.[6] In both cases, the question may well be asked:
was there an absolute necessity for a strict scrutiny approach when,
as in Serrano, the same result emerges when using the lowest level
of scrutiny? In short, I ask if a strict scrutiny is needed under the
circumstances of the present case as the Concurring Opinion of J.
Roberto Abad suggests.
Not to be forgotten or glossed over in answering this question is the
need to consider what a strict scrutiny requires, as well as the
consequences of an expanded concept of equal protection clause and
the accompanying use of a strict scrutiny standard. Among others,
this approach affects the application of constitutional principles that
we vigilantly adhere to in this jurisdiction.
I outline below what a strict scrutiny approach entails.
First, the use of strict scrutiny only applies when the challenged law
or clause results in a “suspect classification”;
Second, the use of a strict scrutiny standard of review creates a
reverse onus: the ordinary presumption of constitutionality is
reversed and the government carries the burden of proving that the
challenged law or clause is constitutional;
And third, the reverse onus in a strict scrutiny standard of review
directly strikes, in the most glaring manner, at the regularity of the
performance of functions of a co-equal branch of government.
When the court uses a strict standard for review to evaluate the
constitutionality of a law, it proceeds from the premise that the law
established a “suspect classification.” A suspect classification is one
where distinctions are made based on the most invidious bases for
classification that violate the most basic human rights, i.e., on the
basis of race, national origin, alien status, religious affiliation and, to
a certain extent, sex and sexual orientation. [7] With a suspect
classification, the most stringent scrutiny of the classification is
applied: the ordinary presumption of constitutionality is reversed and
the government carries the burden of proving the statute’s
constitutionality. This approach is unlike the lowest level of scrutiny
(reasonableness test) that the Court has applied in the past where the
classification is scrutinized and constitutionally upheld if found to be
germane to the purpose of the law. Under a reasonableness test, there
is a presumption of constitutionality and that the laws enacted by
Congress are presumed to fall within its constitutional powers.
To pass strict scrutiny, the government must actively show that the
classification established in the law is justified by a compelling
governmental interest and the means chosen by the State to
effectuate its purpose must be narrowly tailored to the achievement
of that goal.[8] In the context of the present case, is the resulting
classification in the present law so outstandingly harmful to men in
general so that a strict scrutiny is called for?
I do not really see any indication that Congress actually intended to
classify women and children as a group against men, under the terms
of R.A. No. 9262. Rather than a clear intent at classification,
the overriding intent of the law is indisputably to harmonize
family relations and protect the family as a basic social
institution.[9] After sifting through the comprehensive information
gathered, Congress found that domestic and
other forms of violence against women and children impedes the
harmony of the family and the personal growth and development of
family members. In the process, Congress found that these types of
violence must pointedly be addressed as they are more commonly
experienced by women and children due to the unequal power
relations of men and women in our society; Congress had removed
these types of violence as they are impediments that block the
harmonious development that it envisions for the family, of which
men are important component members.
Even granting that a classification resulted in the law, I do not
consider the classification of women and children to be within the
“suspect classification” that jurisprudence has established. As I
mentioned earlier, suspect classifications are distinctions based on
the most invidious bases for classification that violate the most basic
human rights. Some criteria used in determining suspect
classifications are: (1) the group possesses an immutable and/or
highly visible trait;[10] and (2) they are powerless to protect
themselves via the political process.[11] The group is a "discrete" and
"insular" minority.[12] Women and children, to my mind, simply do
not fall within these criteria.
In my view, a suspect classification and the accompanying strict
scrutiny should depend on the circumstances of the case, on the
impact of the illegal differential treatment on the group involved, on
the needed protection and the impact of recognizing a suspect
classification on future classification. [13] A suspect classification label
cannot solely and automatically be triggered by the circumstance that
women and children are accorded special protection by the
Constitution. In fact, there is no place for a strict level of scrutiny
when the Constitution itself has recognized the need for special
protection; where such recognition has been made, congressional
action should carry the presumption of validity.
Similarly, a suspect classification and the accompanying strict
scrutiny standard cannot be solely based on the circumstance that the
law has the effect of being “gender-specific.” I believe that the
classification in the law was not immediately brought on by
considerations of gender or sex; it was simply a reality as
unavoidable as the reality that in Philippine society, a marriage
is composed of a man, a woman and their children. An obvious
reason, of course, why the classification did not solely depend on
gender is because the law also covers children, without regard to
their sex or their sexual orientation.
Congress was sensitive to these realities and had to address the
problem as it existed in order to pinpoint and remove the obstacles
that lay along the way. With this appreciation of reality, Congress
had no recourse but to identify domestic and other forms of violence
committed on women and their children as among the obstacles that
intrude on the development, peace and harmony of the family. From
this perspective, the objective of the law – the productive
development of the family as a whole and the Congress’ view of
what may be done in the area of violence – stand out.
Thus, with the objective of promoting solidarity and the development
of the family, R.A. No. 9262 provides the legal redress for domestic
violence that particularly affects women and their
children. Significantly, the law does not deny, restrict or curtail
civil and human rights of other persons falling outside the
classification, particularly of the men members of the family who
can avail of remedies provided by other laws to ensure the
protection of their own rights and interests. Consequently, the
resulting classification under R.A. No. 9262 is not wholly intended
and does not work an injustice by removing remedies that are
available to men in violence committed against them. The law
furthermore does not target men against women and children and is
there simply to achieve a legitimate constitutional objective, and it
does not achieve this by a particularly harmful classification that can
be labeled “suspect” in the sense already established by
jurisprudence. Under the circumstances, the use and application of
strict scrutiny review, or even the use of an expanded equal
protection perspective, strike me as both unnecessary and
disproportionate.
As my final point, the level of review that the Court chooses to apply
is crucial as it determines both the process and the outcome of a
given case. The reverse onus that a strict scrutiny brings ignores the
most basic presumption of constitutionality that the courts
consistently adhere to when resolving issues of constitutionality. It
also infringes on the regularity of performance of functions of co-
equal branches of government. As the Court pronounced Drilon v.
Lim:[14]
In the exercise of this jurisdiction, lower courts are advised to act
with the utmost circumspection, bearing in mind the consequences of
a declaration of unconstitutionality upon the stability of laws, no less
than on the doctrine of separation of powers. As the questioned act is
usually the handiwork of the legislative or the executive
departments, or both, it will be prudent for such courts, if only out of
a becoming modesty, to defer to the higher judgment of this Court in
the consideration of its validity, which is better detennined after a
thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.
It is also emphasized that every court, including this Court, is
charged with the duty of a purposeful hesitation before declaring a
law unconstitutional, on the theory that the measure was first
carefully studied by the executive and the legislative departments
and determined by them to be in accordance with the fundamental
law before it was finally approved. To doubt is to sustain. The
presumption of constitutionality can be overcome only by the
clearest showing that there was indeed an infraction of the
Constitution, and only when such a conclusion is reached by the
required majority may the Court pronounce, in the discharge of the
duty it cannot escape, that the challenged act must be struck down.
Inter-government harmony and courtesy demand that we reserve the
strict scrutiny standard of review to the worst possible cases of
unacceptable classification, abject forms of discrimination, and the
worst violations of the Constitution.[15] R.A. No. 9262 does not
present such a case.
In these lights, I conclude that a valid classification exists to justify
whatever differential treatment may exist in the law. I vote to deny
the petition and uphold the constitutionality of R.A. No. 9262
using the lowest level of scrutiny under the reasonableness test.
 Examples of this distinction are found in the following provisions
[1]
of the Family Code, as amended:
On the Ownership, Administrative, Enjoyment and Disposition of
the Community Property:
“Art. 96. The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision.”
On the Liquidation of the Absolute Community Assets and
Liabilities:
“Art. 102. Upon dissolution of the absolute community regime, the
following procedure shall apply:
xxxx
(6) Unless otherwise agreed upon by the parties, in the partition of
the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated to the spouse with whom the majority of
the common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there in no such majority, the
court shall decide, taking into consideration the best interests of
said children.” (emphases ours)
On the Administration of the Conjugal Partnership Property:
“Art. 124. The administration and enjoyment of the conjugal
partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision.” (emphasis ours)
On the Liquidation of the Conjugal Partnership Assets and
Liabilities:
“Art. 129. Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply:
xxxx
(9) In the partition of the properties, the conjugal dwelling and the lot
on which it is situated shall, unless otherwise agreed upon by the
parties, be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the
court shall decide, taking into consideration the best interests of
said children.” (emphases ours)
On Parental Authority:
“Art. 209. Pursuant to the natural right and duty of parents over the
person and property of their unemancipated children, parental
authority and responsibility shall include the caring for and rearing
them for civic consciousness and efficiency and the development of
their moral, mental and physical character and well-being.
xxxx
Art. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of
disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.” (emphasis ours)
On the Effect of Parental Authority Upon the Persons of the
Children:
“Art. 220. The parents and those exercising parental authority shall
have with the respect to their unemancipated children on wards the
following rights and duties:
(1) To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their
upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self- discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational materials,
supervise their activities, recreation and association with others,
protect them from bad company, and prevent them from acquiring
habits detrimental to their health, studies and morals;
(5) To represent them in all matters affecting their interests; (6) To
demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8) To perform such other duties as are imposed by law upon parents
and guardians. On the Effect of Parental Authority Upon the
Property of the Children:
Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common child
without the necessity of a court appointment. In case of  Frontiero v. Richardson, 411 U.S. 677 (1973).
[12]

disagreement, the father's decision shall prevail, unless there is a

judicial order to the contrary.”  Concurring Opinion in Serrano v. Gallant Maritime Services,
[13]

Inc., supra note 5, at 322.

 R.A. No. 9262, Section 2.
[2]

 G.R. No. 112497, August 4, 1994,235 SCRA 135, 140; citation

[14]

 Ibid; italics ours.

[3]
omitted.

 487 Phil. 531 (2004).

[4]
 Concurring Opinion in Serrano v. Gallant Maritime Services.
[15]

Inc., supra note 5, at 322.

 G.R. No. 167614, March 24, 2009, 582 SCRA 254.
[5]

 See note 4. In Central Bank, the classification was based on salary

[6]

grade or officer-employee status. In the words of the decision, “It is

akin to a distinction based on economic class and status, with higher
grades as recipients of a benefit specifically withheld from the lower SEPARATE CONCURRING 0PINION
grades” (p. 391).

 See note 5, at 321. Citing City of Cleburn, Texas v. Cleburne

[7]
ABAD, J.:
Living Center, 413 U.S. 432 (1985); Loving v. Commonwealth of
Virginia, 388 U.S. 1 (1967). Republic Act 9262 (R.A. 9262) or the Anti-Violence against Women
and their Children Act is a historic step in the Filipino women's long
 Grutter v. Bollinger, 539 U.S. 306 (2003). See Pamore v. Sidoti,
[8]
struggle to be freed from a long-held belief that men are entitled,
466 U.S. 429,432 (1984); Loving v. Commonwealth of Virginia, when displeased or minded, to hit their wives or partners and their
supra note 7; and Graham v. Richardson, 403 U.S. 365, 375 (1971). children. This law institutionalizes prompt community response to
this violent behavior through barangay officials who can command
 Congressional Records, Vol. III, No. 51, January 14, 2004, pp.
[9]
the man to immediately desist from harming his home partner and
141-147. See p. 25 of the ponencia. their children. It also establishes domestic violence as a crime, not
only against its victims but against society as well. No longer is
[10]
 477 U.S. 635 (1986). domestic violence lightly dismissed as a case of marital dispute that
law enforcers ought not to get into.[1]
 United States v. Carolene Products Company, 304 U.S. 144
[11]

(1938). Almost eight years after the passage of this landmark legislation,
petitioner Jesus C. Garcia, a husband charged with the offense,
claims before the Court that R.A. 9262 violates his constitutional
rights to due process and equal protection and that it constitutes an
undue delegation of judicial power to barangay officials with respect
to the Temporary Protection Order (TPO) that the latter could issue
against him for his alleged maltreatment of his wife and children.
This separate concurring opinion will address the issue of equal
protection since it presents the more serious challenge to the
constitutionality of the law. Men and women are supposed to be
equal yet this particular law provides immediate relief to
complaining women and harsh consequences to their men even
before the matter reaches the courtroom, a relief not available to the
latter. The law, Garcia says, violates his right to equal protection
because it is gender-specific, favoring only women when men could
also be victims of domestic violence.
Justice Estela Perlas-Bernabe ran the issue of equal protection in
her ponencia through the litmus test for holding a law valid even
when it affects only a particular class, a test that the Court laid down
in People v. Vera.[2] A legislative classification, according to Vera, is
reasonable as long as: 1) it rests on substantial distinctions which
make real differences; 2) it is germane to the purpose of the law; 3) it
is not limited to existing conditions but applies as well to future
identical conditions; and 4) it applies equally to all members of the
same class.[3] I dare not improve on Justice Bernabe’s persuasive
reasoning and conclusions.
I agree with her but would like to hinge my separate concurring
opinion on the concept of an Expanded Equal Protection Clause that
former Chief Justice Reynato S. Puno espouses in his book: Equal
Dignity and Respect: The Substance of Equal Protection and Social
Justice.
Chief Justice Puno’s thesis is that the right to equal protection casts
another shadow when the issue raised under it involves persons
protected by the social justice provision of the Constitution,
specifically, Section 1, Article XIII. The equal protection clause can
no longer be interpreted as only a guarantee of formal equality [4] but
of substantive equality. “It ought to be construed,” said the Chief
Justice, “in consonance with social justice as ‘the heart’ particularly
of the 1987 Constitution—a transformative covenant in which the
Filipino people agreed to enshrine asymmetrical equality to uplift
disadvantaged groups and build a genuinely egalitarian
democracy.”[5]
This means that the weak, including women in relation to men, can
be treated with a measure of bias that they may cease to be weak.
Chief Justice Puno goes on: “The Expanded Equal Protection Clause,
anchored on the human rights rationale, is designed as a weapon
against the indignity of discrimination so that in the patently unequal
Philippine society, each person may be restored to his or her rightful
position as a person with equal moral status.”[6] Specifically, the
expanded equal protection clause should be understood as meant to
“reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power
for the common good.”[7] Borrowing the language of Law v.
Canada[8] case and adding his own thoughts, the Chief Justice said:
The purpose of the Expanded Equal Protection Clause is to protect
and enhance the right to dignity by: 1) preventing the imposition,
perpetuation and aggravation “of disadvantage, stereotyping, or
political [,economic, cultural,] or social prejudice;” and 2)
promo[ting a Philippine] society in which all persons enjoy equal
recognition at law as human beings.[9]
Chief Justice Puno points out that the equal protection clause must be
interpreted in connection with the social justice provisions of the
Constitution “so as not to frustrate or water down the constitutional
commitment to promote substantive equality and build the genuinely
“just and humane society” that Filipinos aspire for, as stated in the
Preamble of the 1987 Constitution.”
But the expanded concept of equal protection, said Chief Justice
Puno, only applies to the government’s ameliorative action or
discriminatory actions intended to improve the lot of the
disadvantaged. Laws challenged for invalid classification because of
being unreasonable or arbitrary, but not discriminatory, are outside
the scope of the expanded equal protection clause. Such cases fall
under the traditional equal protection clause which protects the right
to formal equality and determines the validity of classifications
through the well established reasonableness test. [10]
Here, petitioner Garcia argues that R.A. 9262 violates the guarantee
of equal protection because the remedies against personal violence
that it provides may be invoked only by the wives or women partners
but not by the husbands or male partners even if the latter could
possibly be victims of violence by their women partners. Women, he
claims, are also capable of committing physical, psychological,
emotional, and even sexual abuse against their husbands and
children.
Garcia further assails the title of the law—“An Act Defining
Violence against Women and Their Children, Providing for
Protective Measures for Victims, Prescribing Penalties Therefor, and
for Other Purposes”—as pejorative and sex-discriminatory. R.A.
9262 is an “anti-male,” “husband- bashing,” and “hate-men” law. It
establishes a special category of domestic violence offenses which is
akin to legislating hate crimes and imposes penalties based solely on
gender; it singles out the husband or father as the culprit, a clear
form of “class legislation.”
But the Constitution requires the State to “ensure the fundamental
equality before the law of men and women.” Further, it commands
Congress to “give highest priority to the enactment of measures that
protect and enhance the rights of all the people to human dignity x x
x.” and this includes women. In his speech during the joint launching
on October 27, 2004 of R.A. 9262 and its Implementing Rules, Chief
Justice Puno recalled the historical and social context of gender-
based violence that underpin its enactment. Thus:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right to
use force on members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history rooted in
patriarchy—the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually. In ancient western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they
were treated as property.
The Roman concept of patria potestas allowed the husband to beat,
or even kill, his wife if she endangered his property right over her.
Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over
women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one was
the husband. However, in the late 1500s and through the entire
1600s, English common law began to limit the right of husbands to
chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no
thicker than their thumb.
Article II, Section 14 of the 1987 Constitution states:
The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
Also, Article XIII, Section 1 of the 1987 Constitution further states:
The Congress shall give highest priority to the enactment of
measures that protect and enhance the rights of all the people to
human dignity, reduce social , economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
xxxx
The above provisions of the Constitution abundantly authorize
Congress or the government to actively undertake ameliorative
action that would remedy existing inequalities and inequities
experienced by women and children brought about by years of
discrimination. The equal protection clause when juxtaposed to this
provision provides a stronger mandate for the government to combat
such discrimination. Indeed, these provisions order Congress to
“give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social,
economic, and political inequalities and remove cultural inequities.”
No doubt, historically, the Philippine tribal and family model hews
close to patriarchy, a pattern that is deeply embedded in the society’s
subconscious. Consequently, it can be said that in enacting R.A.
9262, Congress has taken an ameliorative action that would address
the evil effects of such social model on Filipino women and children
and elevate their status as human beings on the same level as the
father or the husband.
What remedies does R.A. 9262 especially provide women and
children? The law is gender-specific as only they may file the
prescribed actions against offenders, whether men or women, with
whom the victims are or were in lesbian relationships. [11] The
definition includes past or present marital, live-in, sexual or dating
relationships.
This law also provides for the remedy of a protection order in a civil
action or in a criminal action, aside from the criminal action for its
violation. It makes the process of securing a restraining order against
perpetrators easier and more immediate by providing for the legal
remedy of protection orders from both the courts
and barangay officials.
R.A. 9262 aims to put a stop to the cycle of male abuses borne of
discrimination against women. It is an ameliorative measure, not a
form of “reverse discrimination” against men as Garcia would have
it. Ameliorative action “is not, as Hogg remarked, an exception to
equality, but an expression and attainment of de facto equality, the
genuine and substantive equality which the Filipino people
themselves enshrined as a goal of the 1987
Constitution.”[12] Ameliorative measures are necessary as a
redistributive mechanism in an unequal society to achieve
substantive equality.[13]
In the context of women’s rights, substantive equality has been
defined by the Convention on the Elimination of all forms of
Discrimination Against Women (CEDAW) as equality which
requires that women be given an equal start and that they be
empowered by an enabling environment to achieve equality of
results. It is not enough to guarantee women treatment that is
identical to that of men. Rather, biological as well as socially and
culturally constructed differences between women and men must be
taken into account. Under certain circumstances, non-identical
treatment of women and men will be required in order to address
such differences.
Women’s struggle for equality with men has evolved under three
models:
1. Formal equality - women and men are to be regarded and treated
as the same. But this model does not take into account biological and
socially constructed differences between women and men. [14] It uses
male standards and assumes that women have equal access to such
standards.[15] By failing to take into account these differences, a
formal equality approach may in fact perpetuate discrimination and
disadvantage.[16]
2. Protectionist model – this recognizes differences between women
and men but considers women’s weakness as the rationale for
different treatment.[17] This approach reinforces the inferior status of
women and does not address the issue of discrimination of women
on account of their gender.[18]
3. Substantive equality model – this assumes that women are “not
vulnerable by nature, but suffer from imposed disadvantage” and that
“if these imposed disadvantages were eliminated, there was no
further need for protection.”[19] Thus, the substantive equality model
gives prime importance to women’s contexts, realities, and
experiences, and the outcomes or results of acts and measures
directed, at or affecting them, with a view to eliminating the
disadvantages they experience as women.[20]
Clearly, the substantive equality model inspired R.A. 9262. For one
thing, Congress enacted it because of compelling interest in
preventing and addressing the serious problem of violence against
women in the context of intimate relationships—recognized all over
the world as one of the most insidious forms of gender
discrimination.[21] For another, R.A. 9262 is based on the experiences
of women who have been victims of domestic violence.  The list of
acts regarded as forms ofviolence[22] come from true-to-life stories of
women who have suffered abuses from their male partners. Finally,
R.A. 9262 seeks women's full participation in society. Hence, the
law grants them needed relief to ensure equality, protection, and
personal safety, enabling them to enjoy their civil, political, social,
and economic rights. The provision on protection orders, for
instance, precisely aims to safeguard "the victim from further harm,
minimizing any disruption in the victim's daily life, and facilitating
the oppmtunity and ability of the victim to independently regain
control over her life."[23]
For the above reasons, I vote to dismiss the petition for lack of merit.
 SALIGAN Women's Unit, '"Strengthening Responses to Violence
[1]
against Women: Overcoming Legal Challenges in the Anti-Violence
Against Women and their Children Act" (March 2008), Ateneo Law
Journal.
 65 Phil. 56 (1937).
[2]
 Id. at 126.
[3]
 It holds that two persons with equal status in at least one
[4]
normatively relevant respect must be treated equally with regard to
this respect.
  Chief Justice Reynato S. Puno (ret.), “Equal Dignity and Respect:
[5]

The Substance of Equal Protection and Social Justice,” (2012), p.  Id. at 43-44, citing Goonesekere.
[19]

546.
 Id. at 44.
[20]

 Id. at 523.
[6]

 Id. at 45.
[21]

 1987 Philippine Constitution, Art. XIII, Section 1.

[7]

 SEC. 3. Definition of Terms.- As used in this Act.

[22]

 1 S.C.R. 497 (1999).

[8]

(a) "Violence against women and their children" refers to any act
 Supra note 5, at 512-513.
[9]
or a series of acts committed by any person against a woman who is
his wife, former wife, or against a woman with whom the person has
[10]
 Id. at 543-544. or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate,
 Maria Rowena Amelia V. Guanzon, “The Anti-Violence Against
[11]
within or without the family abode, which result in or is likely to
Women and Their Children Act of 2004 (Republic Act No. 9262),” result in physical, sexual, psychological harm or suffering, or
2009. economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty.
[12]
 Supra note 5 at 527. (Emphasis supplied)

[13]
 Id. at 497.  REPUBLIC ACT 9262, Sec. 8.
[23]

 IWRAW Asia Pacific Manual on CEDAW: Building Capacity for

[14]

Change

[15]
 Id.
CONCURRING OPINION
 Supra note 11, at 42, citing Fredman, S. and Spencer, S., “Beyond
[16]

Discrimination: It’s Time for Enforceable Duties on Public Bodies

to promote Equality of Outcomes”, E.H.R.L.R. Issue 6, 601 (2006)” LEONEN, J.:
[17]
 Supra note 14. I join the ponencia in denying the challenge to the constitutionality
of Republic Act No. 9262 otherwise known as the "Anti-Violence
[18]
 Supra note 11, at 43. against Women and their Children Act of 2004" at least for this case.
I write separately to clarify the basis of my agreement.
The petitioner is not the victim in this case. He does not have legal
standing to raise the constitutional issue.
He appears to have inflicted violence against private respondents.
Petitioner admitted having an atTair with a bank manager. He
callously boasted about their sexual relations to the household help.
His infidelity emotionally wounded private respondent. Their
quarrels left her with bruises and hematoma. Petitioner also
unconscionably beat up their daughter, Jo ann, whom he blamed for
squealing on him.
All these drove respondent to despair causing her to attempt suicide
on December 17, 2005 by slitting her wrist. Instead of taking her to
the hospital, petitioner left the house. He never visited her when she
was confined for seven (7) days. He even told his mother-in-law that
respondent should just accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child with her.
The private respondent was determined to separate from petitiOner.
But she was afraid he would take away their children and deprive her
of financial support. He warned her that if she pursued legal battle,
she would not get a single centavo from him. After she conf onted
him of his affair, he forbade her to hold office at JBTC Building.
This deprived her of access to full information about their
businesses.
Thus, the Regional Trial Court found reasonable ground to believe
there was imminent danger of violence against respondent and her
children and issued a series of Temporary Protection Orders (TPO)
ordering petitioner, among other things, to surrender all his firearms
including a .9MM caliber firearm and a Walther PPK.
This is the quintessential case where the full effects of Republic Act
No. 9262 or the “VAWC” should take effect.
Seen in this light, petitioner’s belated challenge to the law is nothing
but a cheap attempt to raise cherished fundamental constitutional
principles to escape legal responsibility for causing indignities in
another human being. There is enough in our legal order to prevent
the abuse of legal principles to condone immoral acts.
For us to proceed to rule on Constitutional issues, we have required
that: (1) there must be an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must
have "standing" to challenge; he must have a personal and substantial
interest in the case, such that he has sustained or will sustain, direct
injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest possible opportunity;
and (4) the issue of constitutionality must be the very lis mota of the
case.[1]
Legal standing in cases that raise constitutional issues is
essential. Locus standi is defined as "a right of appearance in a court
of justice on a given question."[2] The fundamental question is
“whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.[3]
In private suits, standing is governed by the "real-parties-in-interest"
rule under Section 2, Rule 3 of the 1997 Rules of Civil Procedure in
that "every action must be prosecuted or defended in the name of the
real party- in-interest."[4] “Interest” means material interest or an
interest in issue to be affected by the judgment of the case, as
distinguished from mere curiosity about the question involved. [5]
Thus, there must be a present substantial interest as distinguished
from a mere inchoate expectancy or a future, contingent,
subordinate, or consequential interest.[6] Standing is based on one’s
own right to the relief sought.
The doctrine of locus standi in cases raising constitutional issues
frames the power of judicial review that we wield. This is the power
“to settle actual controversies involving rights which are legally
demandable and enforceable” as well as “to determine whether or
not there has been a grave abuse of discretion amounting to lack or
excess jurisdiction on the part of any branch or instrumentality of the
Government.”[7]
The presence of an “actual case” prevents this Court from providing
advisory opinions or using its immense power of judicial review
absent the presence of a party with real and substantial interests to
clarify the issues based upon his/her experience and standpoint. It
prevents this Court from speculating and rendering rulings on the
basis of pure theory. Our doctrines on justiciability are self-imposed
applications of a fundamental view that we accord a presumption of
constitutionality to acts done by the other constitutional organs and
departments of government. Generally, we do not strike down acts
done by co-equal departments until their repugnancy to the
Constitution can be shown clearly and materially.
I am aware of our precedents where this Court has waived questions
relating to the justiciability of the constitutional issues raised when
they have “transcendental importance” to the public. [8] In my view,
this accommodates our power to promulgate guidance “concerning
the protection and enforcement of constitutional rights”. [9] We choose
to rule squarely on the constitutional issues in a petition wanting all
or some of the technical requisites to meet our general doctrines on
justiciability but raising clear conditions showing imminent threat to
fundamental rights. The imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for
prudence. In a sense, our exceptional doctrine relating to
constitutional issues of “transcendental importance” prevents courts
from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
That necessity is wanting in this case.
The extraordinary discretion to move beyond the well established
doctrines on justiciability must be carefully exercised in cases
involving social legislation that seeks to rectify historical and
cultural injustices present in our communities and societies. As
carefully pointed out in the erudite ponencia of Justice Perlas-
Bernabe, Republic Act No. 9262 was borne out of the struggles of
countless women who suffered indignities. It cannot be undone by a
petition filed by someone who cannot, by any stretch of the most
fertile imagination, be considered the victim.
Nevertheless, in a future case more deserving of our attention, we
should be open to realities which may challenge the dominant
conception that violence in intimate relationships only happens to
women and children. This may be predominantly true, but even those
in marginal cases deserve fundamental constitutional and statutory
protection. We should be careful that in correcting historical and
cultural injustices, we may typecast all women as victims, stereotype
all men as tormentors or make invisible the possibility that in some
intimate relationships, men may also want to seek succor against acts
defined in Section 5 of Republic Act No. 9262[10] in an expeditious
manner.
Husband abuse may be an underreported form of family violence. [11] 
According to a Quezon City Police District Crime Laboratory chief,
in his 10 years as medico-legal officer, he had only received three
cases of men complaining of spousal abuse.[12]

Another recent study found the same underreporting but explored the
experiences of abuse in intimate relationships of six Filipino
husbands.[13]
Their experiences were described as follows:
All the participants acknowledged that they experienced abuse, but
the forms differed from one husband to another. Four out of the six
participants admitted that their spouses’ abusive behavior would
initially start with verbal attacks and put-downs then would shift to
physical abuse as their verbal tussle intensified. Most of the abuses
cited by the participants happened in the confines of their home, but
could also happen in public places.
The constant threats, in the long term, affected the emotional and
psychological well being of the participants. Four of the husbands
felt that their spouses were capable of carrying out their threats. The
frequent and long fights could be emotionally draining. Throughout
the duration of marriage, EC suffered emotionally from the “weird”
marital set-up. For TG, emotional abuse was associated with
shattered trust.
The physical abuse for some participants became life-threatening to
the extent that the injury incurred needed medical attention. Their
spouses could use weapons against them. Four participants described
the incidents that led to their injuries. Coming home one night, RE
saw “this mono block chair flying…hit me…right on the nose.” DL
narrated “…pumunta ako ng doctor on my own para ipalinis yung
sugat ko.” According to HM, his wound from a knife attack was
wide and deep and needed “…some stiches.” JL had to contend with
the long scratches in his chest and back. RE almost lost an eye when
he was hit with a straight punch of the spouse. JL, RE, and DL would
lie to colleagues to avoid being laughed at. DL had to be absent from
his work after being hit by a flying de lata (canned good) thrown at
him during a fight.
Emotional abuse co-existed with verbal and/or physical abuse. The
participants who were recipients of physical abuse were also
emotionally abused when they became susceptible to stress and
threats of the abuser. JL felt guilty when the spouse carried out her
threat of killing herself by intentionally taking an overdose of pills in
the middle of an intense disagreement.
Emotional abuse could occur without physical abuse and yet its
effects were still devastating. For instance, EC and TG were
devastated by the lies and deceit of their spouses. The spouse’s
threats of suicide (JL), abandonment (RE), or taking their children
away after a fight (DL) were as distressing as the other forms of
abuse experienced by the participants.[14]
Social and cultural expectations on masculinity and male dominance
urge men to keep quiet about being a victim, adding to the unique
experience of male victims of domestic abuse. [15] This leads to latent
depression among boys and men.[16] In a sense, patriarchy while
privileging men also victimizes them.
It is true that numerous literature relate violence against women with
the historically unequal power relations between men and women,
leading to domination over and discrimination against the latter.
[17]
 Sociologists cite the 18th-century English legal tradition on the
“rule of thumb” giving husbands the right to beat their wives with a
stick no thicker than a thumb.[18] In America, women were regarded
as property until the latter half of the 19th century with marital
violence considered a husband's privilege and men, as of right,
exercised physical domination over women.[19]
The perspective portraying women as victims with a heritage of
victimization[20] results in the unintended consequence of
permanently perceiving all women as weak. This has not always
been accepted by many other strands in the Feminist Movement.
As early as the 70s, the nationalist movement raised questions on the
wisdom of a women’s movement and its possible divisive effects, as
“class problems deserve unified and concentrated attention [while]
the women question is vague, abstract, and does not have material
base.”[21]
In the early 80s, self-identifying feminist groups were formed. [22] The
“emancipation theory” posits that female crime has increased and has
become more masculine in character as a result of the women's
liberation movement.[23]
Feminism also has its variants among Muslims. In
2009, Musawah (“equality” in Arabic) was launched as a global
movement for equity and justice in the Muslim family. It brought
together activists, scholars, legal practitioners, policy makers, and
grassroots women and men from all over the world. [24] Their belief is
that there cannot be justice without equality, and its holistic
framework integrates Islamic teachings, universal human rights,
national constitutional guarantees of equality, and the lived realities
of women and men.[25]
There is now more space to believe that portraying only women as
victims will not always promote gender equality before the law. It
sometimes aggravates the gap by conceding that women have always
been dominated by men. In doing so, it renders empowered women
invisible; or, in some cases, that men as human beings can also
become victims.
In this light, it may be said that violence in the context of intimate
relationships should not be seen and encrusted as a gender issue;
rather, it is a power issue.[26] Thus, when laws are not gender-neutral,
male victims of domestic violence may also suffer from double
victimization first by their abusers and second by the judicial system.
[27]
 Incidentally, focusing on women as the victims entrenches some
level of heteronormativity.[28] It is blind to the possibility that,
whatever moral positions are taken by those who are dominant, in
reality intimate relationships can also happen between men. [29]
I accept that for purposes of advocacy and for a given historical
period, it may be important to highlight abuse of women qua women.
[30]
 This strategy was useful in the passing of Republic Act No. 9262.
It was a strategy that assured that the problem of battered women and
children in the context of various intimate relationships becomes
publicly visible. However, unlike advocacy, laws have the tendency
to be resilient and permanent. Its existence may transcend historical
periods that dictate effective advocacy. Laws also have a constitutive
function - the tendency to create false consciousness when the labels
and categories it mandates succeed in reducing past evils but turn a
blind eye to other issues.
For instance, one of the first cases that laid down the requisites for
determining whether there was a violation of the equal protection of
the law clause of the Constitution was the 1939 case of People v.
Cayat.[31] It laid down the requirements of reasonable classification
which requires that it (a) must rest on substantial distinctions, (b)
must be germane to the purposes of the law, (c) must not be limited
to existing conditions only, and (d) must apply equally to all
members of the same class.[32] Even as early as 1919, the Court
in Rubi v. Provincial Board of Mindoro[33] recognized the concept of
reasonable classification holding that “[t]he pledge that no person
shall be denied the equal protection of the laws is not infringed by a
statute which is applicable to all of a class. The classification must
have a reasonable basis and cannot be purely arbitrary in nature.” [34]

Yet, it is in these two cases that the Court concluded the following:
As authority of a judicial nature is the decision of the Supreme Court
in the case of United States vs. Tubban [Kalinga] ([1915], 29, Phil.,
434). The question here arose as to the effect of a tribal marriage in
connection with article 423 of the Penal Code concerning the
husband who surprises his wife in the act of adultery. In discussing
the point, the court makes use of the following language:
x x x we are not advised of any provision of law which recognizes as
legal a tribal marriage of so-called non-Christians or members of
uncivilized tribes, celebrated within that province without
compliance with the requisites prescribed by General Orders No. 68
x x x. We hold also that the fact that the accused is shown to be a
member of an uncivilized tribe, of a low order of intelligence,
uncultured and uneducated, should be taken into consideration as a
second marked extenuating circumstance...[35](Emphasis supplied)
The description of the label and the stereotype of “non-Christian
tribe” would later on be corrected by the Constitution, [36] law,[37] and
jurisprudence.[38]
The description of the label and the stereotype that only women can
be considered victims may also evolve in the same way. We should
hope that the situation of patriarchy will not be permanent. Better
cultural structures more affirming of human dignity should evolve. [39]
In a future case, the fact that there may be battered men should not
cause the nullification of protections given to women and children.
The Constitution states that: “[t]he State values the dignity of every
human person and guarantees full respect for human rights.” [40] The
guarantee of full respect should not mean that protections already
given to those who suffer historical or cultural prejudices should be
automatically rescinded if only the scope of the law is found
wanting.
Our Constitution also mandates that the State “shall ensure the
fundamental equality before the law of women and men.” [41] This is
similar to the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)[42] which requires that the
Philippines as state party take all appropriate measures “[to] modify
the social and cultural patterns of conduct of men and women, with a
view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men
and women.”[43] The use of affirmative language should imply that in
the proper suit, a declaration of unconstitutionality on the ground of
the equal protection should not automatically mean that the entire
social legislation that provides effective and efficient protection of
women be set aside.
We have declared that “[a]n unconstitutional act is not a law; it
confers no rights; it imposes no duties; it affords no protection; it
creates no office; it is x x x as inoperative as though it had never
been passed.”[44]  However, the seemingly all-inclusive statement of
absolute retroactive invalidity may not always be justified. [45] One
established exception is the doctrine of operative fact.
The doctrine of operative fact, as an exception to the general rule,
only applies as a matter of equity and fair play. It nullifies the effects
of an unconstitutional law by recognizing that the existence of a
statute prior to a determination of unconstitutionality is an operative
fact and may have consequences which cannot always be ignored.
The past cannot always be erased by a new judicial declaration.
The doctrine is applicable when a declaration of unconstitutionality
will impose an undue burden on those who have relied on the invalid
law.[46]
The possibility that the constitutionality of Republic Act No. 9262
may be challenged by male victims of abuse in intimate relationships
ventures to carve another exception if this court is to ensure the
guarantee of . fundamental equality before the law of women and
men [47] as well as value the dignity of every human person.
[48]
 Applying the general rule or the existing doctrine of operative·
facts would mean removing the protection afforded to women. It will
thus contradict the very reason it is being assailed and result to an
even worse state of laws where none is protected from intimate
violence.
But again, it is not in this case that we consider these possibilities.
By concurring with these statements I express a hope: that the
normative constitutional requirements of human dignity and
fundamental equality can become descriptive reality. The socially
constructed distinctions between women and men that have atllicted
us and spawned discrimination and violence should be eradicated
sooner. Power and intimacy should not co-exist.
The intimate spaces created by our human relationships are our safe
havens from the helter skelter of this world. It is in that space where
we grow in the safety of the special other who we hope will be there
for our entire lifetime. If that is not possible, then for sucl;t time as
will be sufficient to create cherished memories enough to last for
eternity.
I concur in the ponencia. Against abominable acts, let this law take
its full course.
 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936), People
[1]
v. Vera, 65 Phil. 56 (1937). See also Mariano Jr. v. Commission on
Elections, 312 Phil. 259, 270 (1995); Funa v. Executive Secretary
Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 317.
 David v. Macapagal-Arroyo, 522 Phil. 705, 755 (2006) citing
[2]
Black’s LAW DICTIONARY 941 (Sixth Edition, 1991).
 Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667
[3]
SCRA 150, 170.
 Baltazar v. Ombudsman, 539 Phil. 131, 139 (2006).
[4]
 Goco, et al. v. Court of Appeals, G.R. No. 157449, April 6, 2010,
[5]
617 SCRA 397, 405. See also IBP v. Zamora, 392 Phil. 618, 633
(2000).
 Galicto v. Aquino III, supra.
[6]
 CONSTITUTION, Art. VIII, Sec. 1, par. (2).
[7]
 Kilosbayan, Incorporated v. Guingona, G.R. No. 113375, May 5,
[8]
1994, 232 SCRA 110, 139. See also Francisco v. House of
Representatives, 460 Phil. 830, 899 (2003), Funa v. Villar, G.R. No.
192791, April 24, 2012, 670 SCRA 579, 595.
 CONSTITUTION, Art. VIII, Sec. 5, par. (5) relates to the power
[9]
of the Court to promulgate rules concerning the protection and
enforcement of constitutional rights. It was introduced only in the
1987 Constitution borne of historical experiences where judicial
succor was wanting.
[10]
 Section 5. Acts of Violence Against Women and Their
Children.- The crime of violence against women and their children is
committed through any of the following acts:
(a) Causing physical harm to the woman or her child;
(b) Threatening to cause the woman or her child physical harm; (c)
Attempting to cause the woman or her child physical harm;
(d) Placing the woman or her child in fear of imminent physical
harm;
(e) Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to
desist from or desist from conduct which the woman or her child has
the right to engage in, or attempting to restrict or restricting the
woman's or her child's freedom of movement or conduct by force or
threat of force, physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or child. This shall
include, but not limited to, the following acts committed with the
purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
(1) Threatening to deprive or actually depriving the woman or her
child of custody to her/his family;
(2) Depriving or threatening to deprive the woman or her children of
financial support legally due her or her family, or deliberately
providing the woman's children insufficient financial support;
(3) Depriving or threatening to deprive the woman or her child of a
legal right;
(4) Preventing the woman in engaging in any legitimate profession,
occupation, business or activity or controlling the victim's own
money or properties, or solely controlling the conjugal or common
money, or properties
(f) Inflicting or threatening to inflict physical harm on oneself for the
purpose of controlling her actions or decisions;
(g) Causing or attempting to cause the woman or her child to engage
in any sexual activity which does not constitute rape, by force or
threat of force, physical harm, or through intimidation directed
against the woman or her child or her/his immediate family;
(h) Engaging in purposeful, knowing, or reckless conduct, personally
or through another, that alarms or causes substantial emotional or
psychological distress to the woman or her child. This shall include,
but not be limited to, the following acts:
(1) Stalking or following the woman or her child in public or private
places;
(2) Peering in the window or lingering outside the residence of the
woman or her child;
(3) Entering or remaining in the dwelling or on the property of the
woman or her child against her/his will;
(4) Destroying the property and personal belongings or inflicting
harm to animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence
(i) Causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited to,
repeated verbal and emotional abuse, and denial of financial support
or custody of minor children of access to the woman's child/children.
 T. Lewin, Battered Men Sounding Equal-Rights Battle Cry, THE
[11]
NEW YORK TIMES NATIONAL (April 20, 1992) (visited May 27,
2013). See also C. M. RENZETTI AND D. J. CURRAN, WOMEN,
MEN AND SOCIETY 164 (Second Edition, 1992) citing Steinmetz,
1978. seminal critique of male gender identity ideology, introduced the
concept of male gender role strain and conflict.
 C. Delfin, Ever Heard of Battered Husbands? GMA NEWS
[12]
See also J. H. Pleck, The Gender Role Strain: An Update and S. J.
ONLINE (February 13, 2008)   (visited May 27, 2013). See also
Bergman, Men’s Psychological Development: A Relational
ATTY. A. ORDOÑEZ SISON, ABUSED AND THE BATTERED
Perspective, in R. F. LEVANT and W. S. POLLACK, A NEW
MAN (2009).
PSYCHOLOGY OF MEN 11-32 and 68-90 (1995). Also T. REAL, I
DON’T WANT TO TALK ABOUT IT: OVERCOMING THE
 J. J. Jurisprudencia, Coming out of the Shadows: Husbands Speak
[13]
SECRET LEGACY OF MALE DEPRESSION (1997) and HOW
About Their Experience of Abuse in Intimate Relationships, 40
CAN I GET THROUGH TO YOU? CLOSING THE INTIMACY
PHILIPPINE JOURNAL OF PSYCHOLOGY NO. 2 (2007). In the
GAP BETWEEN MEN AND WOMEN (2002).
study, JL was a teacher in one of the schools in Metro Manila. RE
was a university teacher. HM is a medical doctor. DL was a Physics
 Domestic Violence Against Women and Girls, No. 6, UNICEF
[17]
and Engineering graduate. EC was a teacher. TG finished his MBA
Innocenti Digest (2000).
as well as his Bachelor of Laws at a reputable institution but did not
take the bar.
 S.D. Amussen, Being Stirred to Much Unquietness: Violence and
[18]

Domestic Violence in Early Modern England, Vol. 6 No. 2

 Id. at 41-42.
[14]
JOURNAL OF WOMEN'S HISTORY, 70-89 (1994).
 K. F. Hogan, J. R. Hegarty, T. Ward, and L. J.
[15]
 P. M. Jablow, Victims of Abuse and Discrimination: Protecting
[19]
Dodd, Counsellors’ Experiences of Working with Male Victims of
Battered Homosexuals Under Domestic Violence Legislation, 28
Female-Perpetrated Domestic Abuse, COUNSELLING AND
Hofstra L Rev 1096-1097 (2000).
PSYCHOTHERAPY RESEARCH (2011).
 C. Sorisio, A Tale of Two Feminism: Power and Victimization in
[20]
 See S. V. Cochran and F. E. Rabinowitz, Men and Depression:
[16]
Contemporary Feminist Debate, 137 in THIRD WAVE AGENDA:
Clinical and Empirical Perspectives (2000). (visited March 7, 2013).
BEING FEMINIST, DOING FEMINISM, edited by L. Heywood
Early workers in the field including Pleck and Sawyer (1974), Farrell and J. Drake (1997).
(1975), Fasteau (1974) and Goldberg (1976) took up the challenge to
traditional masculine values that feminists had made and began to  See C. I. Sobritchea, The Second Wave of the Women's Movement
[21]

examine the negative and oppressive aspects of traditionally in the Philippines and the Evolution of Feminist Politics, 47, quoting
constructed gender roles. These efforts included an examination of A. F. Santos from The Philippine Women’s Movement: Problems of
the psychologically restrictive nature of most of the cultural Perception, GENDER CULTURE AND SOCIETY: SELECTED
conditioning little boys and men experience. Pleck (1981), in his READINGS IN WOMEN STUDIES IN THE PHILIPPINES (2004).
  Id. at 44.
[22]
 See C. M. Renzetti and D. J. Curran, Chapter 9 on Gender, Crime
[23]
and Justice, WOMEN, MEN AND SOCIETY 220-249 (Second
Edition, 1992).
 See (visited February 26, 2013). MUSAWAH is considered a
[24]
movement rather than an organization.
 Id. Musawa is represented in the Philippines by Nisa Ul Haqq Fi
[25]
Bangsamoro or “Women for Justice in the Bangsamoro.”
 A. Detschelt, Recognizing Domestic Violence Directed Towards
[26]
Men: Overcoming Societal Perceptions, Conducting Accurate
Studies, and Enacting Responsible Legislation, 12 KAN. J.L. &
PUB. POL'Y 249 (2003).
 Id.
[27]
 “[H]eteronormativity is defined as the predominance and
[28]
privileging of a definitively heterosexual- based ideology and social
structure that acts as the exclusive interpreter of itself and of all other
sexualities in relation to it.” Definition found in A. Ponce, Shoring
up Judicial Awareness: LGBT Refugees and the Recognition of
Social Categories, 18 NEW ENG. J. INT'L & COMP. L. 185 (2012)
citing M. Warner, FEAR OF A QUEER PLANET: QUEER
POLITICS AND SOCIAL THEORY (1993).
 For a comparative analysis of lesbian, gay, bisexual and
[29]
transgender (LGBT) issues and strategies, see M. P. Ofreneo and T.
Casal de Vela, Spheres of Lesbian, Gay, Bisexual and Transgender
Struggles: A Comparative Feminist Analysis, 14 GENDER
TECHNOLOGY AND DEVELOPMENT No. 2, 197-215 (July
2010). For an understanding, see B. Fone, HOMOPHOBIA: A
HISTORY (2000).
 x x x essentialism is, among other things, a tool for redressing
[30]
power imbalances, as when the group under study is seen by the
dominant group as illegitimate or trivial, or when a stigmatized
group forms an oppositional identity to counter such negative
ideologies. Essentialism may therefore be a deliberate move to
enable scholarly activity, to forge a political alliance through the
creation of a common identity, or to otherwise provide a temporarily
stable ground for further social action. Such uses of essentialism
have been termed strategic essentialism (Spivak 1988) as discussed
in M. Buchotz, SOCIOLINGUISTIC NOSTALGIA AND THE
AUTHENTICATION OF IDENTITY, 401 (2003). See also M.
Lloyd, BEYOND IDENTITY POLITICS: FEMINISM, POWER
AND POLITICS, 64-67 (2005). Similarly, D. Fuss, ESSENTIALLY
SPEAKING: FEMINISM, NATURE AND DIFFERENCE (1989).
 68 Phil. 12 (1939).
[31]
 Id. at 18.
[32]
 39 Phil. 660 (1919).
[33]
 Id. at 707.
[34]
 Id. at 686.
[35]
 Indigenous Cultural Communities, See CONSTITUTION, Art. II,
[36]
Sec. 22; Art. XII, Sec. 5; Art. XIII, Sec 1.
 Republic Act No. 8371; see also the Manahan amendments in
[37]
Com. Act No. 141 sec. 48 (c).
 See for instance Pit-og v. People of the Philippines, 268 Phil. 413
[38]
(1990) and Cruz v. DENR Secretary, et al. 400 Phil. 904 (2000).
  CONSTITUTION, Art. II, Sec. 14.
[47]

 See S. Walby, The 'Declining Significance' or the 'Changing

[39]

Forms' of Patriarchy? in PATRIARCHY AND ECONOMIC  CONSTITtTION, Art. II, Sec. II.
[48]

DEVELOPMENT: WOMEN'S POSITIONS AT THE END OF THE

TWENTIETH CENTURY (1996).

 CONSTITUTION, Art. II, Sec.11. See also the Universal

[40]

Declaration of Human Rights which similarly provides that “all Batas.org 

human beings are born free and equal in dignity and rights” (Art. 1,
UDHR) and “Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.” (Art. 2,
UDHR)

 CONSTITUTION, Art. II, Sec.14.

[41]

 The Philippines signed the CEDAW on July 15, 1980 and ratified
[42]

the same on August 5, 1981. Available at  

 Convention on the Elimination of all Forms of Discrimination

[43]

against Women, Article 5(a).

 Municipality of Malabang, Lanao Del Sur v. Benito, et al., 137

[44]

Phil. 358, 364 (1969) citing Norton v. Shelby County, 118 U.S. 425,
442 (1886).

 Id.
[45]

 Chavez v. Judicial and Bar Council, GR. No. 202242, July 17,
[46]

2012, 676 SCRA 579, 608 citing Planters Products Inc. v. Fertiphil

Corporation, GR. No. [66006, March 14, 2008. 548 SCRA 485, 516-
517.
 Supreme Court of the Philippines Criminal libel laws present a special problem. At face value, they
might strike as laws passed that abridge the freedom of speech,
expression, or the press. Whatever seeming conflict between these
two precepts has long been judicially resolved with the doctrine that
508 Phil. 193  libelous speech does not fall within the ambit of constitutional
protection. Nonetheless, in ascertaining what class of materials may
be considered as libelous, the freedom of expression clause, its
purposes as well as the evils it guards against, warrant primordial
consideration and application.
SECOND DIVISION
Before this Court is a Petition for Review under Rule 45 of the 1997
G.R. NO. 128959, September 30, 2005 Rules of Civil Procedure, assailing the Decision[6] and
the Resolution[7] of the Court of Appeals (CA) dated 29 July 1996
CIRIACO 'BOY' GUINGGUING,PETITIONER, VS. THE and 3 October 1996, respectively, in CA-G.R. CR No. 16413. The
HONORABLE COURT OF APPEALS AND THE PEOPLE OF CA affirmed with modification[8] the decision[9] rendered by the
THE PHILIPPINES, RESPONDENTS. Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco
"Boy" Guingguing (petitioner) and Segundo Lim (Lim) guilty
DECISION beyond reasonable doubt of the crime of libel. This petition for
certiorari was filed by petitioner alone, hence the verdict of guilt
TINGA, J.: with respect to Lim had already become final and executory.

The liberty of the press is indeed essential. Whoever would The antecedent facts follow.
overthrow the liberty of a nation must begin by subduing the freeness
of speech. This case originated from a criminal complaint for libel filed by
Cirse "Choy" Torralba (complainant) against Lim and petitioner
-Benjamin Franklin[1] under Criminal Case No. CBU-26582. Complainant was a broadcast
journalist who handled two programs for radio stations DYLA and
The right of free expression stands as a hallmark of the modern
DYFX. The radio stations were based in Cebu City but the programs
democratic and humane state.[2] Not only does it assure a person's
were aired over a large portion of the Visayas and Mindanao. [10]
right to say freely what is thought freely, it likewise evinces the
polity's freedom from psychological insecurity. This fundamental
On 13 October 1991, Lim caused the publication of records of
liberty is translated into the constitutional guarantee that no law shall
criminal cases filed against complainant as well as photographs [11] of
be passed abridging the freedom of speech, of expression, or the
the latter being arrested. These were published by means of a one-
press,[3] contained in the Bill of Rights,[4] which itself obtains a
page advertisement paid for by Lim in the Sunday Post, a weekly
position of primacy in our fundamental law.[5]
publication edited and published by petitioner. The Sunday Post was
circulated in the province of Bohol, as well as in the Visayas and
Mindanao.[12] The full text of the advertisement which was the basis CRIM. CASE NO. 14843-R
of the information[13] for libel reads: FOR: SERIOUS PHYSICAL INJURIES
REQUEST FOR PUBLIC SERVICE DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, ADDRESS:
CEBU CITY DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991
TEXT:  IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO
ENLIGHTEN ME REGARDING THE DISPOSITION OF THE NOT TOO LONG AGO, I RECEIVED THE FOLLOWING
FOLLOWING WHICH APPEAR HEREUNDER.  THE CASES NEWSPAPER CLIPPING COURTESY OF A CEBU CITY
WERE FOUND IN THE BLOTTER OF THE CEBU CITY POLICE CONCERNED CITIZEN.  THE CAPTION STORY BELOW
DEPARTMENT. PLEASE DO TELL ME THE STATUS OF TELLS ALL.  IF YOU KNOW WHO THE BUSINESSMAN
THOSE CASES, WHETHER THEY HAVE BEEN DISMISSED, ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.
ARCHIVED AND/OR PENDING. [Thereafter followed by a picture of a person with face blotted out
being arrested and an inset picture of the same person with face
Name:  CIRSE 'CHOY' TORRALBA likewise blotted out, being detained, these pictures being followed by
the caption, which states]:
CRIM. CASE NO. R-43035 'ESTAFA CASE.  Members of Cebu City Police Intelligence group
FOR:  MALICIOUS MISCHIEF under Lt. Col. Eduardo Ricardo arrested last night a businessman
DATE FILED: MAY 10, 1979 (extreme left) for his alleged involvement in estafa case filed by
COMPLAINANTS: DR. JOVENAL ALMENDRAS APOCEMCO.  Left photo a member of the team serves the warrant
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY of arrest order issued by CEBU RTC Judge German Lee.
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN
DISPOSITION: PENDING ARREST CHOY TORRALBA TO HAVE BEEN SERVED A WARRANT
OF ARREST IN A (P)LUSH UPTOWN HOTEL IN CEBU CITY
CRIM. CASE NO. 17984-R BY OPERATIVES OF THE CEBU CITY POLICE.  NOW TELL
FOR : ESTAFA ME, IS IT YOU THE SAME CHOY TORRALBA REFERRED TO
DATE FILED:  July 12, 1982 IN THE CAPTION STORY.  IF INDEED YOU ARE THE ONE
COMPLAINANTS:  MR. PIO Y. GO AND AND THE SAME WHO APPEARED IN THE PICTURE BELOW,
MRS. ROSALITA R. ROLDAN PLEASE TO (sic) INFORM ME.:
ADDRESS:  c/o 2nd Floor Martinez Bldg.    [Thereafter followed by another picture, this time, the face of the
(ALPHA MKTG., INC.), person being arrested is clearly shown to be that of Cirse Choy
Jones Ave., Cebu City Torralba, followed by this caption.]
DISPOSITION:  PENDING ARREST
SERENE EVENING:  The otherwise serene evening enjoyed by
businessman Choy Torralba (left) in a plush uptown Hotel was
disturbed by operatives (right) of the Cebu City Police under
P/Lt/Col. Eduardo Ricardo just to serve on the former a warrant of
arrest issued by Cebu RTC Judge German Lee relative to the suit
filed by Apocemco against the businessman (PR)
THANK YOU, AND MY BEST REGARDS.
PAID SPACE                                                 BY: (sgd.) SEGUNDO
LIM[14]
Asserting inter alia that he had been acquitted and the case/s referred
to had already been settled, complainant sought Lim and petitioner's
conviction for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as attorney's fees
because the publication allegedly placed him in public contempt and
ridicule. It was claimed that the publication was also designed to
degrade and malign his person and destroy him as a broadcast
journalist.[15]
Lim, in his defense, claimed that complainant was allegedly making
scurrilous attacks against him and his family over the airwaves.
Since Lim had no access to radio time, he opted for paid
advertisements via newspaper to answer the attacks, [16]  as a measure
of self-defense. Lim also argued that complainant, as a media man
and member of the fourth estate, occupied a position almost similar
to a public functionary and should not be onion-skinned and be able
to absorb the thrust of public scrutiny.[17]
After trial, the lower court concluded that the publication complained
of was indeed libelous.[18] Declaring that malice is the most important
element of libel, it held that the same was present in the case because
every defamatory publication prima facie implies malice on the part
of the author and publisher towards the person subject thereof. [19] The
lower court gave no credence to Lim and petitioner's argument that
the publication was resorted to in self-defense.
The trial court likewise disregarded the insulative effects of
complainant's status as a mediaman to the prosecution of the criminal
libel charge. The publication of a calumny even against public
officers or candidates for public office, according to the trial court, is
an offense most dangerous to the people. It deserves punishment
because the latter may be deceived thereby and reject the best and
deserving citizens to their great injury.[20] It further held that a private
reputation is as constitutionally protected as the enjoyment of life,
liberty and property such that anybody who attacks a person's
reputation by slanderous words or libelous publications is obliged to
make full compensation for the damage done. [21]
On appeal, the CA modified the penalty imposed but it affirmed the
RTC's finding of guilt. The CA likewise held that self-defense was
unavailing as a justification since the defendant should not go
beyond explaining what was previously said of him. The appellate
court asserted that the purpose of self-defense in libel is to repair,
minimize or remove the effect of the damage caused to him but it
does not license the defendant to utter blow-for-blow scurrilous
language in return for what he received. Once the defendant hits
back with equal or more scurrilous remarks unnecessary for his
defense, the retaliation becomes an independent act for which he
may be liable.[22] For this reason, the CA refused to sanction the
invocation of self-defense.
Petitioner now comes before this Court praying for the reversal of
the judgment against him. Petitioner contends inter alia that as
editor-publisher of the Sunday Post and as a member of the fourth
estate, the lower courts' finding of guilt against him constitutes an
infringement of his constitutional right to freedom of speech and of
the press.[23] Petitioner likewise faults the lower courts' failure to
appreciate their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of
whether the publication subject matter of the instant case is indeed
libelous. While the findings and conclusions of the lower courts are
rigid in their application of the strict letter of the law, the issue seems
more complex than it appears at first blush. The Court is compelled
to delve deeper into the issue considering that libel principles
formulated at one time or another  have waxed and waned through
the years, in the constant ebb and flow of judicial review. [24] A
change in the factual milieu of a case is apt to evoke a change in the
judgment applicable. Viewed in this context, the petition has merit
and the judgment appealed from must be reversed.  libel action. The Zenger case also laid to rest the idea that public
Criminal Libel vis-à-vis the
Guarantee of Free Speech
Under our law, criminal libel is defined as a public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.[25] Thus, the elements
of libel are: (a) imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity of the person
defamed; and, (d) existence of malice. [26]
Originally, the truth of a defamatory imputation was not considered a
defense in the prosecution for libel. In the landmark opinion of
England's Star Chamber in the Libelis Famosiscase in 1603, two
major propositions in the prosecution of defamatory remarks were
established:  first, that libel against a public person is a greater
offense than one directed against an ordinary man, and second, that it
is immaterial that the libel be true.[27] These propositions were due to
the fact that the law of defamatory libel was developed under the
common law to help government protect itself from criticism and to
provide an outlet for individuals to defend their honor and reputation
so they would not resort to taking the law into their own hands. [28]
Our understanding of criminal libel changed in 1735 with the trial
and acquittal of John Peter Zenger for seditious libel in the then
English colony of New York. Zenger, the publisher of the New-York
Weekly Journal, had been charged with seditious libel, for his paper's
consistent attacks against Colonel William Cosby, the Royal
Governor of New York. In his defense, Zenger's counsel, Andrew
Hamilton, argued that the criticisms against Governor Cosby were
"the right of every free-born subject to make when the matters so
published can be supported with truth."[29] The jury, by acquitting
Zenger, acknowledged albeit unofficially the defense of truth in a
officials were immune from criticism.[30]
The Zenger case is crucial, not only to the evolution of the doctrine
of criminal libel, but also to the emergence of the American
democratic ideal. It has been characterized as the first landmark in
the tradition of a free press, then a somewhat radical notion that
eventually evolved into the First Amendment[31] in the American Bill
of Rights and also proved an essential weapon in the war of words
that led into the American War for Independence. [32]
Yet even in the young American state, the government paid less than
ideal fealty to the proposition that Congress shall pass no law
abridging the freedom of speech. The notorious Alien and Sedition
Acts of 1798[33] made it a crime for any person who, by writing,
speaking or printing, should threaten an officer of the government
with damage to his character, person, or estate. The law was passed
at the insistence of President John Adams, whose Federalist Party
had held a majority in Congress, and who had faced persistent
criticism from political opponents belonging to the Jeffersonian
Republican Party. As a result, at least twenty-five people, mostly
Jeffersonian Republican editors, were arrested under the law. The
Acts were never challenged before the U.S. Supreme Court, but they
were not subsequently renewed upon their expiration.[34]
The massive unpopularity of the Alien and Sedition Acts contributed
to the electoral defeat of President Adams in 1800. In his stead was
elected Thomas Jefferson, a man who once famously opined, "Were
it left to me to decide whether we should have a government without
newspapers, or newspapers without a government, I should not
hesitate a moment to prefer the latter."[35]
There is an important observation to be made about the quality of the
American press during the time of Jefferson, one that is crucial to the
contemporaneous understanding of the "freedom of expression"
clause at the time of its inception. The tenor of the public debate
during that era was hardly polite. About the impending election of
Jefferson, the New England Courant predicted that "murder, robbery,
rape and adultery and incest will be openly taught and practiced, the
air will be rent with cries of distress, the soil soaked with blood and
the nation black with crimes."[36] After Jefferson was elected, rumors
spread about his dalliances with his slave, Sally Hemmings, adding
more fodder to his critics. The thirteen-year old William Cullen
Bryant, who would grow up to become a prominent poet and
abolitionist, published the following doggerel: "Thy country's ruin
and thy country's shame!/ Go wretch! Resign the Presidential
chair/Disclose thy secret measures foul and fair.../ Go scan,
philosophist, thy [Sally's] charms/And sink supinely in her sable
arms."[37]
Any comprehensive history of the American media during the first
few decades of the existence of the United States would reveal a
similar preference in the media for such "mad-dog rhetoric." [38] These
observations are important in light of the misconception that freedom
of expression extends only to polite, temperate, or reasoned
expression. The assailed decision of the RTC betrays such a
perception, when it opined that the subject advertisement was
libelous "because by the language used, it had passed from the
bounds of playful gist, and intensive criticism into the region of
scurrilous calumniation and intemperate personalities." [39] Evidently,
the First Amendment was designed to protect expression even at its
most rambunctious and vitriolic form as it had prevalently taken
during the time the clause was enacted.
Nonetheless, juristic enforcement of the guarantee of freedom of
expression was not demonstrably prominent in the United States
during most of the 1800s. Notably, the prevalent philosophy then
was that the Bill of Rights did not apply to the different federal
states.[40] When the US Supreme Court was confronted with
substantial First Amendment issues in the late 1800s and early
1900s, it responded by repeatedly declining to protect free speech. [41] 
The subsequent enactment of the due process clause in the
Fourteenth Amendment eventually allowed the U.S. Supreme Court
to accept, in Gitlow v. New York[42] that the First Amendment was
protected from impairment by the States, thus allowing for a more
vigorous enforcement of the freedom of expression clause in the
twentieth century.[43]
The most important American ruling on libel, arguably from which
modern libel law emerged[44] was New York Times v. Sullivan,
[45]
 penned by the liberal lion Justice William Brennan, Jr.  In
ascertaining whether the New York Times was liable for damages in
a libel action, the U.S. Supreme Court had acknowledged that the
writing in question, an advertisement published in the
paper[46] extolling the virtues of the civil rights movement, had
contained several factual inaccuracies in describing actions taken by
Montgomery, Alabama officials on civil rights protesters. [47] The
Court even concluded that at most, there was a finding against the
New York Times of negligence in failing to discover the
misstatements against the news stories in the newspaper's own files.
[48]
Nonetheless, the U.S. Supreme Court squarely assessed the import of
the First Amendment freedoms in the prosecution of criminal libel.
Famously, the precedent was established that a public official may
not successfully sue for libel unless the official can prove actual
malice, which was defined as "with knowledge that the statement
was false or with reckless disregard as to whether or not it was
true."[49] By this standard, it was concluded that factual errors aside,
actual malice was not proven to sustain the convictions for libel.
Moreover, leeway was allowed even if the challenged statements
were factually erroneous if honestly made.[50]
Shortly after New York Times was promulgated, its principles were
extended by the U.S. Supreme Court to criminal libel actions
in Garrison v. Louisiana.[51] The decision, also penned by Justice
Brennan, commented on the marked decline in the common resort to
criminal libel actions:
Where criticism of public officials is concerned, we see no merit in
the argument that criminal libel statutes serve interests distinct from
those secured by civil libel laws, and therefore should not be subject
to the same limitations. At common law, truth was no defense to
criminal libel. Although the victim of a true but defamatory
publication might not have been unjustly damaged in reputation by
the libel, the speaker was still punishable since the remedy was
designed to avert the possibility that the utterance would provoke an
enraged victim to a breach of peace . . .
[However], preference for the civil remedy, which enabled the
frustrated victim to trade chivalrous satisfaction for damages, has
substantially eroded the breach of peace justification for criminal
libel laws. In fact, in earlier, more violent times, the civil remedy had
virtually pre-empted the field of defamation; except as a weapon
against seditious libel, the criminal prosecution fell into virtual
desuetude.[52]
Then, the Court proceeded to consider whether the historical
limitation of the defense of truth in criminal libel to utterances
published "with good motives and for justifiable ends:"[53]
. . . The "good motives" restriction incorporated in many state
constitutions and statutes to reflect Alexander Hamilton's
unsuccessfully urged formula in People v. Croswell, liberalized the
common-law rule denying any defense for truth. . . . In any event,
where the criticism is of public officials and their conduct of
public business, the interest in private reputation is overborne by
the larger public interest, secured by the Constitution, in the
dissemination of truth. . . .
Moreover, even where the utterance is false, the great principles
of the Constitution which secure freedom of expression in this
area preclude attaching adverse consequences to any except the
knowing or reckless falsehood. Debate on public issues will not be
uninhibited if the speaker must run the risk that it will be proved in
court that he spoke out of hatred; even if he did speak out of hatred,
utterances honestly believed contribute to the free interchange of
ideas and the ascertainment of truth. . . .[54]
Lest the impression be laid that criminal libel law was rendered
extinct in regards to public officials, the Court made this important
qualification in Garrison:
The use of calculated falsehood, however, would put a different
cast on the constitutional question. Although honest utterance,
even if inaccurate, may further the fruitful exercise of the right of
free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like
immunity. At the time the First Amendment was adopted, as
today, there were those unscrupulous enough and skillful enough
to use the deliberate or reckless falsehood as an effective political
tool to unseat the public servant or even topple an
administration. That speech is used as a tool for political ends
does not automatically bring it under the protective mantle of
the Constitution. For the use of the known lie as a tool is at once
with odds with the premises of democratic government and with the
orderly manner in which economic, social, or political change is to
be effected.[55]
Another ruling crucial to the evolution of our understanding
was Curtis Publishing Co. v. Butts,[56] which expanded the actual
malice test to cover not just public officials, but also public figures.
The U.S. Supreme Court, speaking through Chief Justice Warren,
stated that:
[D]ifferentiation between 'public figures' and 'public officials' and
adoption of separate standards of proof for each have no basis in law,
logic, or First Amendment policy. Increasingly in this country, the
distinctions between governmental and private sectors are
blurred. . . .  [I]t is plain that although they are not subject to the
restraints of the political process, 'public figures', like 'public
officials', often play an influential role in ordering society. And
surely as a class these 'public figures' have as ready access as 'public
officials' to mass media of communication, both to influence policy
and to counter criticism of their views and activities. Our citizenry
has a legitimate and substantial interest in the conduct of such
persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it
is in the case of "public officials." The fact that they are not
amenable to the restraints of the political process only underscores
the legitimate and substantial nature of the interest, since it means
that public opinion may be the only instrument by which society can
attempt to influence their conduct.[57]
The public figure concept was later qualified in the case of Gertz v.
Welch, Inc.,[58] which held that a private person should be able to
recover damages without meeting the New York Times standard.[59] In
doing so, the US Supreme Court recognized the legitimate state
interest in compensating private individuals for wrongful injury to
reputation.[60]
The prominent American legal commentator, Cass Sunstein, has
summarized the current American trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit system of free
speech tiers. To simplify a complex body of law: In the highest,
most-speech protective tier is libelous speech directed against a
"public figure". Government can allow libel plaintiffs to recover
damages as a result of such speech if and only if the speaker had
"actual malice"–that is, the speaker must have known that the speech
was false, or he must have been recklessly indifferent to its truth or
falsity. This standard means that the speaker is protected against libel
suits unless he knew that he was lying or he was truly foolish to
think that he was telling the truth. A person counts as a public figure
(1) if he is a "public official" in the sense that he works for the
government, (2) if, while not employed by government, he otherwise
has pervasive fame or notoriety in the community, or (3) if he has
thrust himself into some particular controversy in order to influence
its resolution. Thus, for example, Jerry Falwell is a public figure and,
as a famous case holds, he is barred from recovering against a
magazine that portrays him as having had sex with his mother.
Movie stars and famous athletes also qualify as public figures. False
speech directed against public figures is thus protected from libel
actions except in quite extreme circumstances. [61]
It may also be noted that this heightened degree of protection
afforded to free expression to comment on public figures or matters
against criminal prosecution for libel has also gained a foothold in
Europe. Article 10 of the European Convention on Human Rights
and Fundamental Freedoms provides that "[e]veryone has the right to
freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers." [62] The
European Court of  Human Rights applied this provision in Lingens
v. Austria,[63] in ruling that the Republic of Austria was liable to pay
monetary damages "as just satisfaction" to a journalist who was
found guilty for defamation under the Austrian Criminal Code. [64] 
The European Court noted:
[Article 10] is applicable not only to 'information' or 'ideas' that are
favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are
the demands of that pluralism, tolerance and broadmindedness
without which there is no 'democratic society'. . . . These principles
are of particular importance as far as the press is concerned. Whilst
the press must not overstep the bounds set, inter alia, for the
'protection of the reputation of others', it is nevertheless incumbent
on it to impart information and ideas on political issues just as on
those in other areas of public interest. Not only does the press have
the task of imparting such information and ideas: the public also has
the right to receive them. . . .[65]
The international trend in diminishing the scope, if not the viability,
of criminal libel prosecutions is clear.  Most pertinently, it is also
evident in our own acceptance in this jurisdiction of the principles
applied by the U.S. Supreme Court in cases such as New York
Times and Garrison.
Particularly, this Court has accepted the proposition that the actual
malice standard governs the prosecution of criminal libel cases
concerning public figures. In Adiong v. COMELEC,[66]  the Court
cited New York Times in noting that "[w]e have adopted the principle
that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public
officials."[67] The Court was even more explicit in its affirmation
of New York Times in Vasquez v. Court of Appeals.[68] Speaking
through Justice Mendoza:  officials are considered public figures. In fact, the definition
For that matter, even if the defamatory statement is false, no liability
can attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual malice —
that is, with knowledge that it was false or with reckless disregard of
whether it was false or not. This is the gist of the ruling in the
landmark case of New York Times v. Sullivan, which this Court has
cited with approval in several of its own decisions.[ [69]] This is the
rule of "actual malice." In this case, the prosecution failed to prove
not only that the charges made by petitioner were false but also that
petitioner made them with knowledge of their falsity or with reckless
disregard of whether they were false or not. [70]
The Court has likewise extended the "actual malice" rule  to  apply  the present petition, there are two main determinants: whether
not only to public officials, but also to public
figures.  In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court
cited with approval the following definition of a public figure
propounded by an American textbook on torts:
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in
his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree
of reputation by appearing before the public, as in the case of an
actor, a professional baseball player, a pugilist, or any other
entertainer. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even
ordinary soldiers, an infant prodigy, and no less a personage than the
Grand Exalted Ruler of a lodge. It includes, in short, anyone who has
arrived at a position where public attention is focused upon him as a
person.[72]
Ayer did not involve a prosecution for libel, but a complaint for
injunction on the filming of a dramatized account of the 1986 EDSA
Revolution. Nonetheless, its definition of a public figure is important
to this case, as it clearly establishes that even non-governmental
propounded in Ayer was expressly applied by the Court in Borjal v.
Court of Appeals[73] in ascertaining whether the complainant therein
was a public figure, thus warranting the application of the actual
malice test.[74]
We considered the following proposition as settled in this
jurisdiction: that in order to justify a conviction for criminal libel
against a public figure, it must be established beyond reasonable
doubt that the libelous statements were made or published with
actual malice, meaning knowledge that the statement was false or
with reckless disregard as to whether or not it was true. As applied to
complainant is a public figure, and assuming that he is, whether the
publication of the subject advertisement was made with actual
malice. Sadly, the RTC and the CA failed to duly consider both
propositions.
Complainant Is a Public Figure
There should be little controversy in holding that complainant is a
public figure. He is a broadcast journalist hosting two radio programs
aired over a large portion of the Visayas and Mindanao. Measured
against the definition provided in Ayer, complainant would definitely
qualify as a public figure. Complainant even asserted before the trial
court that his broadcast was listened to widely, hence, his notoriety is actually existing or previous cases?
unquestionable. A At the time of the publication those cases were terminated,
long terminated.
Complainant's standing as a public figure is further militated by the  
contextual circumstances of the case. The newspaper in question, the Q  But is it true that in fact, there was a criminal case No. R-
Sunday Post, is particularly in circulation in the areas where 43035 for Malicious Mischief filed May 10, 1979 against
complainant's broadcasts were aired. Certainly, it cannot be denied you?
that the target audience of the newspaper were the same persons who  
may have listened regularly to the complainant's broadcast. Even if FISCAL ROCAMORA:
the sphere of complainant's renown is limited in geography, it is in  
the same plane as the circulation of the offending newspaper. The   Your Honor, I believe the witness did not understand the
extent of complainant's ability to influence hearts and minds through question.
his broadcasts need not be established, only that he has such capacity  
and willingness to exert an influence. Complainant's volition to COURT:  (to Stenographer)
practice the radio broadcasting profession necessarily thrusts him in  
the public sphere.   Read back the question.
 
Actual Malice Not Proven Q Is it true that in fact, there was a criminal case No. R-43035
for Malicious Mischief filed May 10, 1979, against you?
As it has been established that complainant was a public figure, it A I really do not know about that accusation.
was incumbent upon the prosecution to prove actual malice on the  
part of Lim and petitioner when the latter published the article COURT:
subject matter of the complaint. Set otherwise, the prosecution must  
have established beyond reasonable doubt that the defendants knew   Proceed.
the statements in the advertisement was false or nonetheless  
proceeded with reckless disregard as to publish it whether or not it ATTY. FLORIDO:
was true.  
Q When you came across the publication, did you check if in
It should thus proceed that if the statements made against the public fact there was a case docketed with that number against you? 
figure are essentially true, then no conviction for libel can be had. Did you check?
Any statement that does not contain a provably false factual A  I did not.
connotation will receive full constitutional protection. [75] An  
examination of the records of this case showed that the prècis of Q:  Now, is it true that there was a criminal case against you for
information contained in the questioned publication were actually Estafa docketed as criminal case No. 17984-R filed July 21,
true. Thus, complainant himself testified:   1982 where the complaints were Pio Go and Mrs. Rosalita
Q But is it true that these cases published in Exhibit "F-1" are Roldan?
A: Yes. Physical Injuries.  You made inquiries?
  A:  Yes.
Q:  Is it true that there was also a criminal case filed against you  
numbered 14843-R for Serious Physical Injuries, date filed Q: And you also know that Dr. Jovenal Almendras your
April 28, 1980 which in this publication appears provisionally godfather in the wedding had also filed a case of Malicious
dismissed April 14, 1991? Mischief against you?
A:  That case, I do not have any idea about it. A: I know but that was in the past.
   
Q: Did you inquire from the appropriate Court when you Q:  Yes, I know that that was in the past, but that is true?   
received a copy of this to find out if it is true that these cases A: Yes.
were filed against you?  
A: As far as I know, in fact, I never received any subpoena or Q:  So, there is nothing false so far as Exhibit "F-1"?
anything about this case. A: There is no question about that but that is malicious.
   
Q: Yes, but did you upon receipt of Exhibit "F-1", did you Q:  Let me see.  On the lefthand side of the bottom it says.  "Not
inquire from the Court whether it is true that these cases had too long ago, I received the following newspaper clippings
been recorded as filed against you? courtesy of the Cebu City concerned citizens.  The caption
A: Well, as far as I know  like the Estafa case, I was already long story below tells all.  If you know who the businessman
been acquitted in that case. alluded to in the caption.  Please do tells me and then, there is
  a photograph a reprint from Sun Star publication.  Do you
Q:  You did not answer the question.  Will you please answer. confirm that?[76]
   
COURT: (to witness) x  x  x
   
Q: The question is, did you inquire from the Court concerned Q:  But is it true that you were arrested per this photograph and I
whether that case exist? quote.  "In a plush uptown hotel was disturbed by operatives
A: Yes. (right) of the Cebu City Police under Police Lieutenant Col.
  Eduardo Ricardo just to serve on the former a warrant of
COURT: arrest issued by the Cebu RTC Judge German Lee relative to
  the suit filed by Apocemco against a businessman".  Is it true
  Proceed. that you were arrested?
  A: Yes.
ATTY. FLORIDO:  
  Q: So this photograph is genuine photograph?
Q: And you discovered that they were true that this was A: Yes.
provisionally dismissed with reference to 14843-R for Serious  
Q:  And you claimed that you have a good reputation and that
good reputation had been soiled by the accused in this case.  A:
Let me ask you concerning your reputation then.  Is it not a
fact that aside from this record of criminal cases appearing in
Exhibit "F-1", you have also been at one time or another been
accused of several other criminal cases both in and out of the
City of Cebu?
A:  Yes, before, 10 years, 15 years ago.
 
Q: And in the Municipal Trial Court in Cities alone in Cebu City,
you have the following per certificate which we marked as
Exhibit "2".  Criminal Case Nos. 14843-R for Serious
Physical Injuries, Torralba Cirse "Choy"; 17984-R, for Estafa;
Torralba Cirse R. R-43035 for Malicious Mischief.  You will
confirm that the same Cirse Torralba and/or Choy Torralba
and/or Cirse R. Torralba mentioned in this certificate refer to
your person?
A:  Yes.
 
Q: Now, aside from these criminal cases in the Municipal Trial
Courts in Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6, 7,
8, 9 criminal cases before the Regional Trial Court of Cebu
per certificate that I marked as Exhibit "3".  Is that correct?
A:  Yes, but all those cases have already been either acquitted or
dismissed.  I will present the certification.
 
Q:  Specifically, these cases has something to do with your
character.  Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6th
case for issuance of a bouncing check, the 7th case is a case for
issuance of a bouncing check; and the 9th is also for issuance
of a bouncing check.  You will confirm that?
 
  .  .  .  .
 
COURT:  (to witness)
 
Q: What happened to those cases?
I was acquitted your Honor.  I was acquitted in all those cases,
some are dismissed, and fortunately, your Honor, I do not
have any conviction.[77]
From the foregoing, it is clear that there was nothing untruthful about
what was published in the Sunday Post. The criminal cases listed in
the advertisement as pending against the complainant had indeed
been filed. It may have been inconvenient for the complainant that
these matters may have been divulged, yet such information hardly
falls within any realm of privacy complainant could invoke, since the
pendency of these criminal charges are actually matters of public
record.
The information, moreover, went into the very character and
integrity of complainant to which his listening public has a very
legitimate interest. Complainant hosts a public affairs program, one
which he himself claimed was imbued with public character since it
deals with "corruptions in government, corruptions by public
officials, irregularities in government in comrades." [78] By entering
into this line of work, complainant in effect gave the public a
legitimate interest in his life. He likewise gave them a stake in
finding out if he himself had the integrity and character to have the
right to criticize others for their conduct.
In convicting the defendants, the lower courts paid particular heed to
Article 354 of the Revised Penal Code, which provides that "every
defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is
shown...". We hold that this provision, as applied to public figures
complaining of criminal libel, must be construed in light of the
constitutional guarantee of free expression, and this Court's
precedents upholding the standard of actual malice with the
necessary implication that a statement regarding a public figure if
true is not libelous. The provision itself allows for such leeway,
accepting as a defense "good intention and justifiable motive." The
exercise of free expression, and its concordant assurance of
commentary on public affairs and public figures, certainly qualify as
"justifiable motive," if not "good intention."
It cannot be helped if the commentary protected by the Bill of Rights
is accompanied by excessive color or innuendo. Certainly, persons in
possession of truthful facts are not obliged to present the same in
bland fashion.  These true facts may be utilized to convince the
listener/reader against a particular position, or to even dissuade one
against accepting the credibility of a public figure. Dry facts, by
themselves, are hardly stirring. It is the commentary thereupon that
usually animates the discourse which is encouraged by the
Constitution as integral to the democratic way of life. This is replete
in many components of our daily life, such as political addresses,
televised debates, and even commercial advertisements.
As adverted earlier, the guarantee of free speech was enacted to
protect not only polite speech, but even expression in its most
unsophisticated form. Criminal libel stands as a necessary
qualification to any absolutist interpretation of the free speech
clause, if only because it prevents  the proliferation of untruths which
if unrefuted, would gain an undue influence in the public discourse.
But in order to safeguard against fears that the public debate might
be muted due to the reckless enforcement of libel laws, truth has
been sanctioned as a defense, much more in the case when the
statements in question address public issues or involve public
figures.
In ascertaining the degree of falsity that would constitute actual
malice, the Court, citing New York Times, has even gone so far as
acknowledging:
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors
or misstatements are inevitable in any scheme of truly free
expression and debate. Consistent with good faith and reasonable
care, the press should not be held to account, to a point of
suppression, for honest mistakes or imperfections in the choice of
language. There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and tolerance
can they courageously and effectively function as critical agencies in
our democracy. In Bulletin Publishing Corp. v. Noel we held — 
A newspaper especially one national in reach and coverage, should
be free to report on events and developments in which the public has
a legitimate interest with minimum fear of being hauled to court by
one group or another on criminal or civil charges for libel, so long as
the newspaper respects and keeps within the standards of morality
and civility prevailing within the general community.
To avoid the self-censorship that would necessarily accompany strict
liability for erroneous statements, rules governing liability for injury
to reputation are required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same reason that the New
York Times doctrine requires that liability for defamation of a public
official or public figure may not be imposed in the absence of proof
of "actual malice" on the part of the person making the libelous
statement.[79]
To this end, the publication of the subject advertisement by petitioner
and Lim cannot be deemed by this Court to have been done with
actual malice. Aside from the fact that the information contained in
said publication was true, the intention to let the public know the
character of their radio commentator can at best be subsumed under
the mantle of having been done with good motives and for justifiable
ends. The advertisement in question falls squarely within the bounds
of constitutionally protected expression under Section 4, Article III,
and thus, acquittal is mandated.
WHEREFORE, premises considered, the petition is GRANTED. The
assailed Decision and Resolution of the Court of Appeals dated 29
July 1996 and 3 October 1996, respectively, in CA-G.R. CR No.
16413 are REVERSED  and  SET ASIDE  insofar  as  they  affect
petitioner. The Decision of the Regional Trial Court of Cebu City,
promulgated on 17 May 1994, as regards petitioner is likewise
REVERSED and SET ASIDE and petitioner is ACQUITTED of the
charge of libel therein. No costs.

SO ORDERED.
Puno (chairman), Austria-Martinez, Callejo, Sr., and Chico-
Nazario, JJ., concur.
 Published under the pseudonym "Silence Dogood" in the New
[1]
England Courant (July 2 to 9, 1722 edition).  costs.
 As a matter of fact, the principle is enshrined in Article 19 of the
[2]
United Nations Declaration of Human Rights: "Everyone has the
right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless
of frontiers."
[3]
 See Section 4, Article III, CONSTITUTION.
[4]
 Article III, CONSTITUTION.
 See People v. Tudtud, G.R. No. 144037, 26 September 2003, 412
[5]
SCRA 142, 168; Teves v. Sandiganbayan, G.R. No. 154182, 17
December 2004, 447 SCRA 309, 335, J. Tinga, dissenting.
 Penned by Associate Justice Eduardo G. Montenegro, concurred in
[6]
by Associate Justices Emeterio C. Cui and Jose C. De La Rama.
[7]
 Rollo,  p. 27.
 The Court of Appeals lowered the penalty imposed to TWO (2)
[8]
MONTHS and ONE (1) DAY of arresto mayor, as minimum to
ONE (1) YEAR, EIGHT (8) MONTHS and TWENTY-ONE (21)
DAYS of prision correccional as maximum.
 "WHEREFORE, the court finds accused SEGUNDO LIM and
[9]
BOY 'BG' GUINGGING, GUILTY beyond reasonable doubt, as
principals of the crime of libel as charged in the information, defined
and penalized in Art. 353 in relation to Art. 355 of the Revised Penal
Code, and hereby sentences the said accused to a prison term of,
ranging from, One (1) year, Eight (8) months and Twenty-one (21)
days as minimum to, Two (2) years, Eleven (11) months and Eleven
(11) days of prision correccional, as maximum; to indemnify the
complainant, damages in the amount of P50,000.00 and to pay the
SO ORDERED."
[10]
 RTC Records, p. 178.
 The two photographs were reprinted from the Sun Star Daily and
[11]
the Freeman, newspapers of general circulation in Visayas and
Mindanao. 
[12]
 Rollo, p. 15.
 "That on or about the 13th day of October, 1991, in the City of
[13]
Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, conniving and confederating together and
mutually helping each other, with deliberate intent, with intent to
besmirch, dishonor or discredit the person of one Cirse 'Choy'
Torralba and to place  him in public contempt and ridicule, did then
and there write and publish or cause to be written and published on
the Sunday Post, a newspaper of wide circulation in the provinces of
Cebu and Bohol on its issue on October 13, 1991, specifically on
page 8 thereof, the context of which is hereunder reproduced
verbatim, as follows:
 . . . .
to the damage and prejudice of the said Cirse "Choy" Torralba."
  See "Record of the Trial of John Peter Zenger (from Zenger's
[29]

 Rollo, p. 13.
[14]
1736 Narrative)", at >(Last visited, 27 September 2005).

 RTC Records, p. 180.

[15] [30]
 Wagman, supra note 28 at 146.

 TSN, 19 November 1993, pp. 8-9; TSN, 20 January 1994, pp. 7-9.
[16]
 Which reads: "Congress shall make no law respecting an
[31]

establishment of religion, or prohibiting the free exercise thereof,

 RTC Records, p. 183.
[17]
abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for
 Id. at 184.
[18]
redress of grievances."

 Supra. note 13.
[19]
 Kenneth Davis, DON'T KNOW MUCH ABOUT HISTORY:
[32]

EVERYTHING YOU NEED TO KNOW ABOUT AMERICAN

 Id. at 185.
[20]
HISTORY BUT NEVER LEARNED (1990), at 41. 

 Ibid.
[21] [33]
 1 Stat. 596. 

 Rollo, p. 22.
[22]
 In 1801. More than one-hundred fifty years later, Justice Brennan
[34]

noted in New York Times v. Sullivan, 376 U.S. 254 (1964),

 Id. at 6.
[23]
"Although the Sedition Act was never tested in this Court, the attack
upon its validity has carried the day in the court of history. Fines
 Borjal v. Court of Appeals, 361 Phil. 1, 7 (1999).
[24]
levied in its prosecution were repaid by Act of Congress on the
ground that it was unconstitutional." Id. at 276.
 Art. 353 of the Revised Penal Code.
[25]
[35]
 In a letter to Col. Edward Carrington dated 16 January 1787. 
 Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297
[26]

(1990); citing Daez v. Court of Appeals, G.R. No. 47971, 31 October  See Gail Collins, SCORPION TONGUES: THE IRRESISTIBLE
[36]

1990, 191 SCRA 61, 67. HISTORY OF GOSSIP IN AMERICAN POLITICS (1998) at 25.  

 Supra note 24, citing Alfred H. Knight, THE LIFE OF THE

[27] [37]
 Id. at 29. 
LAW, Crown Publishers, Inc., New York, 1996, pp. 102, 230 and
231.  [38]
 See id. at 25. 

 Robert J. Wagman, THE FIRST AMENDMENT BOOK (1991)

[28] [39] 
See Records, pp. 184-185. 
at 144.
[40]
 See Wagman, supra note 28 at 146.
  See Laurence H. Tribe, CONSTITUTIONAL CHOICES (1985),
[41]
 379 U.S. 64 (1964). 
[51]

at 190. 
 Id. at 67-69. 
[52]

 268 U.S. 652 (1925).

[42]

 The phraseology, similarly adopted in Article 354 of the Revised

[53]

 "This tentative incorporation of the First Amendment in the

[43]
Penal Code, was employed as a standard of defense for criminal libel
Fourteenth Amendment was accepted in subsequent decisions and in several American states. See Footnote 7, Garrison v.
moved from dictum to holding in Fiske v. Kansas, the first case to Louisiana, ibid. 
uphold a defendant's claim to protection under the First
Amendment." Thomas Emerson, The System of Freedom of  Id. at 72-74. (Emphasis supplied.)
[54]

Expression (1970) at 103.

 Id. at 75.  Emphasis supplied. It seems that the provision of this
[55]

 See Wagman, supra note 28 at 146.
[44]
distinction was the cause for three of the Justices sitting in
the Garrison case, Justices Hugo Black, William O. Douglas, and
 376 U.S. 254 (1964).
[45]
Arthur Goldberg, to concur separately, holding the more absolutist
view that the notion of seditious criminal libel was itself noxious to
 Published by the Committee to Defend Martin Luther King, Jr.
[46]
the Constitution.

 New York Times v. Sullivan, supra note 45 at  258-259.

[47]
 388 U.S. 130 (1967).
[56]

 Id. at 287-288. 
[48]
 Id.  at 163-164, CJ Warren, concurring. Nonetheless, this passage
[57]

from the opinion of Chief Justice Warren acquired precedental value,

 Id. at 280. 
[49]
four other Justices concurring in the views expressed therein. See id.,
at 133.
 The U.S. Supreme Court held: "A rule compelling the critic of
[50]

official conduct to guarantee the truth of all his factual assertions–  418 U.S. 323 (1974).
[58]

and to do so on pain of libel judgments virtually unlimited in

amount–leads to a comparable 'self-censorship.' Allowance of the  See Kathleen Sullivan and Gerald Gunther, CONSTITUTIONAL
[59]

defense of truth, with the burden of proving it on the defendant, does LAW: FOURTEENTH EDITION (2001) at 1036. 
not mean that only false speech will be deterred." New York Times
v. Sullivan, supra note 45 at 279. Moreover, cited by way of  Gertz v. Welch, Inc., supra note 58 at 348. 
[60]

footnote reference is the statement of John Stuart Mill that "Even a

false statement may be deemed to make a valuable contribution to  Cass Sunstein, DEMOCRACY AND THE PROBLEM OF FREE
[61]

the public debate, since it brings about the clearer perception and SPEECH (1995 ed.) at 9-10. 
livelier impression of truth, produced by its collision with error."
  Article 10(1), EUROPEAN CONVENTION ON HUMAN
[62]
concluded that the complainant was a public figure, and that the
RIGHTS AND FUNDAMENTAL FREEDOMS.  actual malice test found application.  

 9815/82 [1986] ECHR 7 (8 July 1986).

[63]
 Kathleen Sullivan and Gerald Gunther, supra note 59 at
[75]

1032; citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

 Particularly, the defendant Lingens had criticized the former
[64]
Austrian Chancellor Bruno Kreisky for protecting a political ally
accused of having earlier served in the German SS.
The opinion therein of Chief Justice Rehnquist nonetheless qualifies,
"a false statement of fact gains no constitutional immunity if the
speaker simply adds the words 'I think'." 

 Lingens v. Austria, supra note 63, at par. 41.

[65]
 TSN, 23 April 23 1993, pp. 8-9.
[76]

 G.R. No. 103956, 31 March 1992, 207 SCRA 712.

[66]
 TSN, 23 April 1993, pp. 6-11, 13.
[77]

 Id. at 716.  
[67]
 TSN, 15 March 1993, p. 40.
[78]

 373 Phil. 238 (1999). 

[68]
 Borjal v. Court of Appeals, supra note 24 at 26-27. 
[79]

 Particularly cited are Lopez v. Court of Appeals, 145 Phil. 219

[69]

(1970); Mercado v. Court of First Instance, 201 Phil. 565 (1982);

Babst v. National Intelligence Board, 132 SCRA 316, 325 (1984)
(Fernando, C.J., concurring).
Batas.org 
 Vasquez, supra note 68 at 254. 
[70]

 G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA 861. 
[71]

 Id. at 874-875; citing PROSSER AND KEETON ON TORTS,

[72]

(5th ed.) at 859-861.

 Supra note 24.
[73]

 The complainant in Borjal was the Executive Director of the First

[74]

National Conference on Land Transportation, "to be participated in

by the private sector in the transport industry and government
agencies concerned in order to find ways and means to solve the
transportation crisis." Applying the definition in Ayer, the Court
 Supreme Court of the Philippines
321 Phil. 966  LAUDE, LEOREMINDA MONARES REPRESENTED BY
EN BANC
G.R. No. 95770, December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, REPRESENTED
BY THEIR PARENTS, MR. & MRS. LEONARDO
EBRALINAG, JUSTINIANA TANTOG, REPRESENTED BY
HER FATHER, AMOS TANTOG, JEMIL OYAO & JOEL
OYAO, REPRESENTED BY THEIR PARENTS MR. & MRS.
ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS,
REPRESENTED BY PARENTS MR. & MRS. GODOFREDO
DIAMOS, SARA OSTIA & JONATHAN OSTIA, REPRE-
SENTED BY THEIR PARENTS MR. & MRS. FAUSTO
OSTIA, IRVIN SEQUINO & RENAN SEQUINO,
REPRESENTED BY THEIR PARENTS MR. & MRS. LYDIO
SEQUINO, NAPTHALE TUNACAO REPRESENTED BY HIS
PARENTS MR. & MRS. MANUEL TUNACAO, PRECILA
PINO REPRESENTED BY HER PARENTS MR. & MRS.
FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR,
REPRESENTED BY THEIR PARENTS MR. & MRS.
HERMINIGILDO ALFAR, FREDESMINDA ALFAR &
GUMERSINDO ALFAR, REPRESENTED BY THEIR
PARENTS ABDON ALFAR ALBERTO ALFAR & ARISTIO
ALFAR, REPRESENTED BY THEIR PARENTS MR. & MRS.
GENEROSO ALFAR, MARTINO VILLAR, REPRESENTED
BY THEIR PARENTS MR. & MRS. GENARO VILLAR,
PERGEBRIEL GUINITA & CHAREN GUINITA,
REPRESENTED BY THEIR PARENTS MR. & MRS. CESAR
GUINITA, ALVIN DOOP REPRESENTED BY HIS PARENTS
MR. & MRS. LEONIDES DOOP, RHILYN LAUDE
REPRESENTED BY HER PARENTS MR. & MRS. RENE
HER PARENTS MR. & MRS. FLORENCIO MONARES,
MERCY MONTECILLO, REPRESENTED BY HER
PARENTS MR. & MRS. MANUEL MONTECILLO,
ROBERTO TANGAHA, REPRESENTED BY HIS PARENT
ILUMINADA TANGAHA, EVELYN MARIA & FLORA
TANGAHA REPRESENTED BY THEIR PARENTS MR. &
MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG
REPRESENTED BY HIS PARENTS MR. & MRS. PAQUITO
EBRALINAG, JUTA CUMON, GIDEON CUMON &
JONATHAN CUMON, REPRESENTED BY THEIR FATHER
RAFAEL CUMON, EVIE LUMAKANG AND JUAN
LUMAKANG, REPRESENTED BY THEIR PARENTS MR. &
MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR
SARSOZO, & IGNA MARIE SARSOZO REPRESENTED BY
THEIR PARENTS MR. & MRS. VIRGILIO SARSOZO,
MICHAEL JOSEPH & HENRY JOSEPH, REPRESENTED BY
PARENT ANNIE JOSEPH, EMERSON TABLASON &
MASTERLOU TABLASON, REPRESENTED BY THEIR
PARENTS EMERLITO TABLASON, PETITIONERS, VS.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF
CEBU, AND MR. MANUEL F. BIONGCOG, CEBU DISTRICT
SUPERVISOR, RESPONDENTS. 
[G.R. NO. 95887]
MAY AMOLO, REPRESENTED BY HER PARENTS MR. &
MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT
ALSADO & RUDYARD ALSADO REPRESENTED BY THEIR
PARENTS MR. & MRS. ABELARDO ALSADO, NESIA
ALSADO, REU ALSADO AND LILIBETH ALSADO,
 REPRESENTED BY THEIR PARENTS MR. & MRS.
ROLANDO ALSADO, SUZETTE NAPOLES, REPRESENTED
BY HER PARENTS ISMAILITO NAPOLES AND OPHELIA
NAPOLES, JESICA CARMELOTES, REPRESENTED BY
HER PARENTS MR. & MRS. SERGIO CARMELOTES,
BABY JEAN MACAPAS, REPRESENTED BY HER PARENTS
MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO,
REPRESENTED BY HER PARENTS MR. & MRS. JOEL
ALSADO, RAQUEL DEMOTOR, AND LEAH DEMOTOR,
REPRESENTED BY THEIR PARENTS MR. & MRS.
LEONARDO DEMOTOR, JURELL VILLA AND MELONY
VILLA, REPRESENTED BY THEIR PARENTS MR. & MRS.
JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY
GRACE MAHINAY, AND MAGDALENE MAHINAY,
REPRESENTED BY THEIR PARENTS MR. & MRS. FELIX
MAHINAY, JONALYN ANTIOLA AND JERWIN ANTIOLA,
REPRESENTED BY THEIR PARENTS FELIPE ANTIOLA
AND ANECITA ANTIOLA, MARIA CONCEPCION
CABUYAO, REPRESENTED BY HER PARENTS
WENIFREDO CABUYAO AND ESTRELLITA CABUYAO,
NOEMI TURNO REPRESENTED BY HER PARENTS
MANUEL TURNO AND VEVENCIA TURNO, SOLOMON
PALATULON, SALMERO PALATULON AND ROSALINA
PALATULON, REPRESENTED BY THEIR PARENTS
MARTILLANO PALATULON AND CARMILA
PALATULON, PETITIONERS, VS. THE DIVISION
SUPERINTENDENT OF SCHOOLS OF CEBU, AND
ANTONIO A. SANGUTAN, RESPONDENTS.  the issue here is not curtailment of religious belief but regulation of
RESOLUTION
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March 1,
1993 granting private respondents' petition for certiorari and
prohibition and annulling the expulsion orders issued by the public
respondents therein on the ground that the said decision created an
exemption in favor of the members of the religious sect, the
Jehovah's Witnesses, in violation of the "Establishment Clause" of
the Constitution.  The Solicitor General, on behalf of the public
respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for special
treatment in favor of a minority sect even on the basis of a claim of
religious freedom may be criticized as granting preference to the
religious beliefs of said sect in violation of the "non-establishment
guarantee" provision of the Constitution.  Surely, the decision of the
Court constitutes a special favor which immunizes religious
believers such as Jehovah's Witnesses to the law and the DECS rules
and regulations by interposing the claim that the conduct required by
law and the rules and regulation (sic) are violative of their religious
beliefs.  The decision therefore is susceptible to the very criticism
that the grant of exemption is a violation of the "non-establishment"
provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority
poses a risk of collision course with the "equal protection of the
laws" clause in respect of the non-exempt, and, in public schools, a
collision course with the "non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a
"neutral stance" by reverting to its holding in Gerona declaring the
flag as being devoid of any religious significance.  He stresses that
the exercise of religious belief. Finally, he maintains that the State's
interests in the case at bench are constitutional and legal obligations
to implement the law and the constitutional mandate to inculcate in
the youth patriotism and nationalism and to encourage their
involvement in public and civic affairs, referring to the test devised
by the United States Supreme Court in U.S. vs. O'Brien.[1]
II

All the petitioners in the original case[2] were minor schoolchildren,
and members of the sect, Jehovah's Witnesses (assisted by their
parents) who were expelled from their classes by various public
school authorities in Cebu for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge as required by
Republic Act No. 1265 of July 11, 1955 and by Department Order
No. 8, dated July 21, 1955 issued by the Department of Education.  respondents therein as violative of both the free exercise of religion
Aimed primarily at private educational institutions which did not
observe the flag ceremony exercises, Republic Act No. 1265
penalizes all educational institutions for failure or refusal to observe
the flag ceremony with public censure on first offense and
cancellation of the recognition or permit on second offense.
The implementing regulations issued by the Department of
Education thereafter detailed the manner of observance of the same.  reason to disturb our earlier ruling.
Immediately pursuant to these orders, school officials in Masbate
expelled children belonging to the sect of the Jehovah's Witnesses
from school for failing or refusing to comply with the flag ceremony
requirement.  Sustaining these expulsion orders, this Court in the
1959 case of Gerona vs. Secretary of Education[3] held that:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity and
cohesion and of freedom and liberty which it and the Constitution
guarantee and protect.  Considering the complete separation of
church and state in our system of government, the flag is utterly
devoid of any religious significance. Saluting the flag consequently
does not involve any religious ceremony.  xxx.
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts.  It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meanings to be given to a
certain ritual or ceremony as there are religious groups or sects or
followers.
Upholding religious freedom as a fundamental right deserving the
"highest priority and amplest protection among human rights," this
Court, in Ebralinag vs Division Superintendent of Schools of
Cebu[4] re-examined our over two decades-old decision
in Gerona and reversed expulsion orders made by the public
clause and the right of citizens to education under the 1987
Constitution.[5]
From our decision of March 1, 1993, the public respondents filed a
motion for reconsideration on grounds hereinabove stated.  After a
careful study of the grounds adduced in the government's Motion For
Reconsideration of our original decision, however, we find no cogent
The religious convictions and beliefs of the members of the religious
sect, the Jehovah's Witnesses are widely known and are equally
widely disseminated in numerous books, magazines, brochures and
leaflets distributed by their members in their house to house
distribution efforts and in many public places.  Their refusal to
render obeisance to any form or symbol which smacks of idolatry is
based on their sincere belief in the biblical injunction found in
Exodus 20:4,5, against worshipping forms or idols other than God
himself.  The basic assumption in their universal refusal to salute the
flags of the countries in which they are found is that such a salute
constitutes an act of religious devotion forbidden by God's law.  This
assumption, while "bizarre" to others is firmly anchored in several
biblical passages.[6]
And yet, while members of Jehovah's Witnesses, on the basis of
religious convictions, refuse to perform an act (or acts) which they
consider proscribed by the Bible, they contend that such refusal
should not be taken to indicate disrespect for the symbols of the
country or evidence that they are wanting in patriotism and
nationalism.  They point out that as citizens, they have an excellent
record as law abiding members of society even if they do not
demonstrate their refusal to conform to the assailed orders by overt
acts of conformity. On the contrary, they aver that they show their
respect through less demonstrative methods manifesting their
allegiance, by their simple obedience to the country's laws, [7] by not
engaging in antigovernment activities of any kind,[8] and by paying
their taxes and dues to society as self-sufficient members of the
community.[9] While they refuse to salute the flag, they are willing to
stand quietly and peacefully at attention, hands on their side, in order
not to disrupt the ceremony or disturb those who believe differently.
[10]
The religious beliefs, practices and convictions of the members of
the sect as a minority are bound to be seen by others as odd and
different and at divergence with the complex requirements of
contemporary societies, particularly those societies which require
certain practices as manifestations of loyalty and patriotic behavior.
Against those who believe that coerced loyalty and unity are mere
shadows of patriotism, the tendency to exact "a hydraulic insistence
on conformity to majoritarian standards,"[11] is seductive to the
bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as
the responsibility "to inculcate in the minds of the youth the values
of patriotism and nationalism and to encourage their involvement in
public and civic affairs." The teaching of these values ranks at the
very apex of education's "high responsibility" of shaping up the
minds of the youth in those principles which would mold them into
responsible and productive members of our society.  However, the
government's interest in molding the young into patriotic and civic
spirited citizens is "not totally free from a balancing
process"[12] when it intrudes into other fundamental rights such as
those specifically protected by the Free Exercise Clause, the
constitutional right to education and the unassailable interest of
parents to guide the religious upbringing of their children in
accordance with the dictates of their conscience and their sincere
religious beliefs.[13] Recognizing these values, Justice Carolina
Grino-Aquino, the writer of the original opinion, underscored that a
generation of Filipinos which cuts its teeth on the Bill of Rights
would find abhorrent the idea that one may be compelled, on pain of
expulsion, to salute the flag sing the national anthem and recite the
patriotic pledge during a flag ceremony.[14] "This coercion of
conscience has no place in a free society". [15]
The State's contentions are therefore, unacceptable, for no less
fundamental than the right to take part is the right to stand apart. [16] In
the context of the instant case, the freedom of religion enshrined in
the Constitution should be seen as the rule, not the exception.  To
view the constitutional guarantee in the manner suggested by the
petitioners would be to denigrate the status of a preferred freedom
and to relegate it to the level of an abstract principle devoid of any
substance and meaning in the lives of those for whom the protection
is addressed.  As to the contention that the exemption accorded by
our decision benefits a privileged few, it is enough to re-emphasize
that "the constitutional protection of religious freedom terminated
disabilities, it did not create new privileges.  It gave religious
equality, not civil immunity."[17] The essence of the free exercise
clause is freedom from conformity to religious dogma, not freedom
from conformity to law because of religious dogma. [18] Moreover, the
suggestion implicit in the State's pleadings to the effect that the flag
ceremony requirement would be equally and evenly applied to all
citizens regardless of sect or religion and does not thereby
discriminate against any particular sect or denomination escapes the
fact that "[a] regulation, neutral on its face, may in its application,
nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion." [19]
III
The ostensible interest shown by petitioners in preserving the flag as
the symbol of the nation appears to be integrally related to
petitioner's disagreement with the message conveyed by the
refusal of members of the Jehovah's Witness sect to salute the flag or
participate actively in flag ceremonies on religious grounds.
[20]
 Where the governmental interest clearly appears to
be unrelated to the suppression of an idea, a religious doctrine or
practice or an expression or form of expression, this Court will not
find it difficult to sustain a regulation.  However, regulations
involving this area are generally held against the most exacting
standards, and the zone of protection accorded by the Constitution
cannot be violated, except upon a showing of a clear and present
danger of a substantive evil which the state has a right to protect.
[21]
 Stated differently, in the case of a regulation which appears to
abridge a right to which the fundamental law accords high
significance it is the regulation, not the act (or refusal to act), which
is the exception and which requires the court's strictest scrutiny. In
the case at bench, the government has not shown that refusal to do
the acts of conformity exacted by the assailed orders, which
respondents point out attained legislative cachet in the
Administrative Code of 1987, would pose a clear and present danger
of a danger so serious and imminent, that it would prompt legitimate
State intervention.
In a case involving the Flag Protection Act of 1989, the U.S.
Supreme Court held that the "State's asserted interest in preserving
the flag as a symbol of nationhood and national unity was an interest
related to the suppression of free expression ...because the State's
concern with protecting the flag's symbolic meaning is
implicated only when a person's treatment of the flag
communicates some message."[22] While the very concept of
ordered liberty precludes this Court from allowing every individual
to subjectively define his own standards on matters of conformity in
which society, as a whole has important interests, the records of the
case and the long history of flag salute cases abundantly supports the
religious quality of the claims adduced by the members of the sect
Jehovah's Witnesses.  Their treatment of flag as a religious symbol is
well-founded and well-documented and is based on grounds
religious principle.  The message conveyed by their refusal to
participate in the flag ceremony is religious, shared by the entire
community of Jehovah's Witnesses and is intimately related to their
theocratic beliefs and convictions.  The subsequent expulsion of
members of the sect on the basis of the regulations assailed in the
original petitions was therefore clearly directed against religious
practice.  It is obvious that the assailed orders and memoranda would
gravely endanger the free exercise of the religious beliefs of the
members of the sect and their minor children.
Furthermore, the view that the flag is not a religious but a neutral,
secular symbol expresses a majoritarian view intended to stifle the
expression of the belief that an act of saluting the flag might
sometimes be —  to some individuals —  so offensive as to be worth
their giving up another constitutional right - the right to education.
Individuals or groups of individuals get from a symbol the meaning
they put to it.[23] Compelling members of a religious sect to believe
otherwise on the pain of denying minor children the right to an
education is a futile and unconscionable detour towards instilling
virtues of loyalty and patriotism which are best instilled and
communicated by painstaking and non-coercive methods.  Coerced
loyalties, after all, only serve to inspire the opposite.  The methods
utilized to impose them breed resentment and dissent.  Those who
attempt to coerce uniformity of sentiment soon find out that the only
path towards achieving unity is by way of suppressing dissent. [24] In
the end, such attempts only find the "unanimity of the graveyard." [25]
To the extent to which members of the Jehovah's Witnesses sect
assiduously pursue their belief in the flag's religious symbolic
meaning, the State cannot, without thereby transgressing
constitutionally protected boundaries, impose the contrary view on
the pretext of sustaining a policy designed to foster the supposedly
far-reaching goal of instilling patriotism among the youth.  While
conceding to the idea - adverted to by the Solicitor General —  that
certain methods of religious expression may be prohibited [26] to serve
legitimate societal purposes, refusal to participate in the flag
ceremony hardly constitutes a form of religious expression so
offensive and noxious as to prompt legitimate State intervention.  It
is worth repeating that the absence of a demonstrable danger of a
kind which the State is empowered to protect militates against the
extreme disciplinary methods undertaken by school authorities in
trying to enforce regulations designed to compel attendance in flag
ceremonies. Refusal of the children to participate in the flag salute
ceremony would not interfere with or deny the rights of other school
children to do so.  It bears repeating that their absence from the
ceremony hardly constitutes a danger so grave and imminent as to
warrant the state's intervention.
Finally, the respondents' insistence on the validity of the actions
taken by the government on the basis of their averment that "a
government regulation of expressive conduct is sufficiently justified
if it is within the constitutional power of the government (and)
furthers an important and substantial government interest" [27] misses
the whole point of the test devised by the United States Supreme
Court in O'Brien, cited by respondent, because the Court therein was
emphatic in stating that "the government interest (should
be) unrelated to the suppression of free expression." We have
already stated that the interest in regulation in the case at bench was
clearly related to the suppression of an expression directly connected
with the freedom of religion and that respondents have not shown to
our satisfaction that the restriction was prompted by a compelling
interest in public order which the state has a right to protect. 
Moreover, if we were to refer (as respondents did by referring to the
test in O'Brien) to the standards devised by the US Supreme Court in
determining the validity or extent of restrictive regulations impinging
on the freedoms of the mind, then the O'Brien standard is hardly
appropriate because the standard devised in O'Brien only applies if
the State's regulation is not related to communicative conduct.  If
a relationship exists, a more demanding standard is applied. [28]
The responsibility of inculcating the values of patriotism,
nationalism, good citizenship, and moral uprightness is a
responsibility shared by the State with parents and other societal
institutions such as religious sects and denominations.  The manner
in which such values are demonstrated in a plural society occurs in
ways so variable that government cannot make claims to the
exclusivity of its methods of inculcating patriotism so all-
encompassing in scope as to leave no room for appropriate parental
or religious influences. Provided that those influences do not pose a
clear and present danger of a substantive evil to society and its
institutions, expressions of diverse beliefs, no matter how upsetting
they may seem to the majority, are the price we pay for the freedoms
we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby
DENIED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosilo, Melo,
Puno, Vitug, Francisco, and Hemosisima, Jr., JJ., concur.
Mendoza, J., see concurring opinion.
Padilla, J., reiterate my  Separate Opinion in G.R. 95770 (Ebraling
vs. The Division Superintended of Schools of Cebu), 1 March 1993,
219 SCRA 276.
Panganiban, J., took no part.
 "To this end," the motion states, "a government regulation of
[1]
expressive religious conduct which debases the constitutional
mandate for citizenship training is justifiable.  As succinctly outlined
in one U.S. case:
A government regulation of expressive conduct is sufficiently
justified if it is within the Constitutional power of this government; it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression and if the incidental restriction on alleged First HISTORY, 31 (1985).
Amendment freedom is greater than is essential to the furtherance of
that interest.  (United  States v O'Brien, 391 U.S. 367)"  See supra note 15, citing Justice Frankfurter.
[17]

 G.R. No 95770, and G.R. No. 95887 March 1, 1993, 219 SCRA
[2]  Id.
[18]

256 (1993).
 Sherbert v. Verner, 374 U.S. 398 (1963).
[19]

 106 Phil. 2(1959).

[3]
 For instance, the Motion for Reconsideration characterizes the
[20]

 Supra, note 2.
[4] practices and observations of the sect as "bizarre," Rollo, p.
229, "seditious" Id., p. 240 and "anti-social" Id.(emphasis
 Id., at 272-273 (1993).
[5] supplied).  In making these points, the Motion makes this tongue-in-
cheek observation:  "Because of their religious conviction that they
 See, for e.g. Daniel 3:  1-30.
[6] "are not part of this world, and being allegedly concerned "about the
adverse effect that the world's influence can have on our children",
 Rollo, p. 8.
[7] the Jehovah's Witnesses ask that their children...be exempted from
participating in almost all school activities and social function (sic)
 Id.
[8] which, as they pointed out below are contrary to Bible (sic)
principles.  "Id.  The statement, "not part of this world" was
 Id.
[9] deliberately taken out of context.  Here is what the paragraph from
the sect's manual says:
[10]
 Rollo, p. 10.
As one might expect, this view of the future also had a significant
[11]
 State of Wisconsin v. Yoder 40 LW 4476 (1972) effect on the first Christians.  It caused them to be a distinctive
people, separate from the world.  As the historian E.G. Hardy noted
[12]
 Id. in his book Christianity and the Roman Government:  "The
Christians were strangers and pilgrims in the world around them;
 Id., See also, Pierce v. Society of Sisters 268 U.S. 510, 534
[13] their citizenship was in heaven; the kingdom to which they looked
(1925). was not part of this world.  The consequent want of interest in
public affairs came thus from the outset to be a noticeable feature in
[14]
 Ebralinag, supra, at 270. Christianity.  Annex "B", p. 7.

[15]
 Id., at 275, Cruz J. (Concurring).  West Virginia v. Barnette 319 US 624, at 339 (1942).
[21]

 L. TRIBE, GOD SAVE THIS HONORABLE COURT:  HOW

[16]  U.S. v.  Eichman 496 US 310,313; 110 Led 2d 287 (1990).
[22]

THE CHOICE OF SUPREME COURT JUSTICES SHAPES OUR

  Supra, note 4.
[23]
permitting him to invoke the First Amendment in challenging his
conviction.  If his conduct was expressive, we next decide whether
 Id., at 640.
[24]
the State's regulation is related to the suppression of free expression. 
If the state's regulation is not related to expression, then the less
 Id., at 641.  "Recognizing that the right to differ is the centerpiece
[25]
stringent standard we announced in United States vs O'Brien for
of our First Amendment ...a government cannot mandate by fiat a regulations of noncommunicative conduct controls.  If it is then we
feeling of unity in its citizens.  Therefore, that very same are outside O'Brien's test, and we must ask whether this interest
government cannot carve out a symbol of unity and prescribe a justifies Johnson's conviction under a more demanding
set of approved messages to be associated with that symbol when standard.  Id, at 403.
it cannot mandate the status or feeling the symbol purports to
represent." See, Texas v Johnson, 491 US 397 at 400 (1989).

 Raising the "Children of God" caper, the Solicitor General's brief

[26]

states:
CONCURRING OPINION
How about the Children of God, also known as Future Visions of
Family which engages in free love and sex sharing among its
MENDOZA, J.:
members by way of obedience to the biblical injunction "to love your
neighbor and love yourself" as interpreted by its founder, Moses
The value of the national flag as a symbol of national unity is not in
David Berg, through his writings entitled "The Law of Love" and
question in this case.  The issue rather is whether it is permissible to
"Growing in Faith." Despite the crusades of Cardinal Sin and the
compel children in the Nation's schools to salute the flag as a means
Aquino government, this self-styled sex cult has gain (sic) foothold
of promoting nationhood considering that their refusal to do so is
and spread in numbers in this country, offering free sex, cutely
grounded on a religious belief.
termed as "flirty fishing to win people for the Lord." Will this
Honorable Court also recognize and allow their communal free love
Compulsory flag salute lies in a continuum, at one end of which is
and sex orgies to continue unabated as part of their religious belief
the obligation to pay taxes and, at the other, a compulsion to bow
and protected by their constitutional right of freedom of religion,
down before a graven image.  Members of a religious sect cannot
thereby sideswiping the present Government's program to prevent
refuse to pay taxes,[1] render military service,[2] submit to
the spread of venereal diseases and the dreaded AIDS through the
vaccination[3] or give their children elementary school education [4] on
use of condoms?" Rollo, p. 245.
the ground of conscience.  But public school children may not be
compelled to attend religious instructions[5] or recite prayers or join
 Supra, note 1.
[27]
in bible reading before the opening of classes in such schools. [6]
 Referring to the test devised in O'Brien the U.S. Supreme Court
[28]
In determining the validity of compulsory flag salute, we must
in Texas v. Johnson, supra, held:  "We must first determine whether
determine which of these polar principles exerts a greater pull.  The
Johnson's burning of the flag constituted expressive conduct
imposition of taxes is justified because, unless support for the
government can be exacted, the existence of the State itself may well
be endangered. The compulsory vaccination of children is justified
because unless the State can compel compliance with vaccination
program there is danger that a disease will spread.  But unlike the
refusal to pay taxes or to submit to compulsory vaccination, the
refusal to salute the flag threatens no such dire consequences to the
life or health of the State.  Consequently, there is no compelling
reason for resorting to compulsion or coercion to achieve the purpose
for which flag salute is instituted.
Indeed schools are not like army camps where the value of discipline
justifies requiring a salute to the flag.  Schools are places where
diversity and spontaneity are valued as much as personal discipline
is.  They are places for the nurturing of ideals and values, not
through compulsion or coercion but through persuasion, because
thought control is a negation of the very values which the
educational system seeks to promote.  Persuasion and not
persecution is the means for winning the allegiance of free men.  for accomplishing it is not permitted. Legitimate ends cannot be
That is why the Constitution provides that the development of moral
character and the cultivation of civic spirit are to be pursued through
education that includes a study of the Constitution, an appreciation of
the role of national heroes in historical development, teaching the
rights and duties of citizenship and, at the option of parents and
guardians, religious instruction to be taught by instructors designated
by religious authorities of the religion to which they belong.  It is
noteworthy that while the Constitution provides for the national flag,
[7]
 it does not give the State the power to compel a salute to the flag.
On the other hand, compelling flag salute cannot be likened to
compelling members of a religious sect to bow down before a graven
image.  The flag is not an image but a secular symbol.  To regard it
otherwise because a religious minority regards it so would be to put
in question many regulations that the State may constitutionally
enact or measures which it may adopt to promote civic virtues which
the Constitution itself enjoins the State to promote. [8]
It trivializes great principles to assimilate compulsory flag salute to a
form of command to worship strange idols not only because the flag
is not a religious symbol but also because the salute required
involves nothing more than standing at attention or placing one's
right hand over the right breast as the National Anthem is played and
of raising the right hand as the following pledge is recited:
Ako'y nanunumpang magtatapat sa watawat ng Pilipinas at sa
Republikang kanyang kinakatawan —  isang bansang nasa kalinga
ng Dios buo at hindi mahahati, na may kalayaan at katarungan para
sa lahat.
(I pledge allegiance to the flag and to the nation for which it stands
— one nation under God indivisible, with liberty and justice for all.)
In sum compulsory flag salute violates the Constitution not because
the aim of the exercise is doubtful but because the means employed
pursued by methods which violate fundamental freedoms when the
ends may be achieved by rational ones.
For this reason I join in holding that compulsory flag salute is
unconstitutional.
 United States v. Lee, 455 U.S. 25 (1982).
[1]
 Gillette v. United States, 401 U.S. 437 (1971); Hamilton v.
[2]
Regents of the University of California, 293 U.S. 245
(1934). Cf. People v. Lagman and People v. Sosa, 66 Phil. 13 (1938).
 Jacobson v. Massachusetts, 197 U.S. 11 (1904); People v. Abad
[3]
Lopez, 62 Phil. 835 (1936); Lorenzo v. Director, 50 Phil. 595 (1927).
 Wisonsin v. Yoder, 406 U.S. 205 (1972). PHIL. CONST., Art.
[4]
XIV, S2(2) provides that "elementary education is compulsory for all
children of school age."

 Art. XIV, §3(3) only provides "for optional religious instruction on

[5]

public elementary and high education is compulsory for all children

of school age."

 Engel v. Vitale, 307 U.S. 421 (1962); Abington School Dist. v.

[6]

Schempp, 374 U.S. 203 (1963); cf. Wallace v. Jaffree, 472 U.S. 38

(1985).

 CONST., Art. XVI, §1.

[7]

 See Art. II, §13; Art. XIV, §3 (2).

[8]

Batas.org 
 Supreme Court of the Philippines
150-C Phil. 551  "That on or about May 1969 to December 5, 1969, in the
EN BANC
G.R. No. L-32613-14, December 27, 1972
PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON.
SIMEON N. FERRER (IN HIS CAPACITY AS JUDGE OF
THE COURT OF FIRST INSTANCE OF TARLAC, BRANCH
I), FELICIANO CO ALIAS LEONCIO CO ALIAS "BOB,"
AND NILO S. TAYAG ALIAS ROMY REYES ALIAS
"TABA," RESPONDENTS. 
DECISION
CASTRO, J.:
Posed in issue in these two cases is the constitutionality of the Anti-
Subversion Act,[1]  which outlaws the Communist Party of the
Philippines and other "subversive associations," and punishes any
person who "knowingly, willfully and by overt acts affiliates himself
with, becomes or remains a member" of the Party or of any other
similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of
the Anti-Subversion Act was filed against the respondent Feliciano
Co in the Court of First Instance of Tarlac.  On March 10 Judge Jose
C. de Guzman conducted a preliminary investigation and, finding
a prima facie  case against Co, directed the Government prosecutors
to file the corresponding information.  The twice-amended
information, docketed as Criminal Case No. 27, recites: 
Municipality of Capas, Province of Tarlac, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused,
feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal
organization aimed to overthrow the Government of the Philippines
by means of force, violence, deceit, subversion, or any other illegal
means for the purpose of establishing in the Philippines a totalitarian
regime and placing the government under the control and domination
of an alien power, by being an instructor in the Mao Tse Tung
University, the training school of recruits of the New People's Army,
the military arm of the said Communist Party of the Philippines.
"That in the commission of the above offense, the following
aggravating circumstances are present, to wit: 
“(a) That the crime has been committed in contempt of or with insult
to public authorities;
‘(b) That the crime was committed by a band; and  
“(c) With the aid of armed men or persons who insure or afford
impunity." 
Co moved to quash on the ground that the Anti-Subversion Act is a
bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed
with the same court, charging the respondent Nilo Tayag and five
others with subversion.  After preliminary investigation was had, an
information was filed, which, as amended, reads: 
"The undersigned Provincial Fiscal of Tarlac and State Prosecutors
duly designated by the Secretary of Justice to collaborate with the
Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above
entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias
TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE
alias COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No.
1700, otherwise known as the Anti-Subversion Law, committed as
follows:
"That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined
and/or remained as officers and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as
defined in Republic Act No. 1700; that BENJAMIN BIE alias
COMMANDER MELODY, in addition thereto, knowingly, willfully
and by overt acts joined and/or remained as a member and became
an officer and/or ranking leader not only of the Communist Party of
the Philippines but also of the New People's Army, the military arm
of the Communist Party of the Philippines; and that all the above-
named accused, as such officers and/or ranking leaders of the
aforestated subversive organizations, conspiring, confederating and
mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by
inciting, instigating and stirring the people to unite and rise publicly
and tumultuously and take up arms against the government, and/or
engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means, among which are the
following:  resolution of September 15, 1970, declared the statute void on the
“1. On several occasions within the province of Tarlac, the accused
conducted meetings and/or seminars wherein the said accused
delivered speeches instigating and inciting the people to unite, rise in
arms and overthrow the Government of the Republic of the
Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among
others a chapter of the KABATAANG MAKABAYAN in barrio
Motrico, La Paz, Tarlac for the avowed purpose of undertaking or -
promoting an armed revolution, subversive and/or seditious
propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the
Philippines and to establish in the Philippines a Communist regime.
“2. The accused NILO TAYAG alias ROMY REYES alias TABA,
together with FRANCISCO PORTEM alias KIKO Gonzales and
others, pursued the above subversive and/or seditious activities in
San Pablo City by recruiting members for the New People's Army,
and/or by instigating and inciting the people to organize and unite for
the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other
illegal means, and establishing in the Philippines a Communist
Government. 
"That the following aggravating circumstances attended the
commission of the offense:  (a) aid of armed men or persons to
insure or afford impunity; and (b) craft, fraud, or disguise was
employed."
On July 21, 1970 Tayag moved to quash, impugning the validity of
the statute on the grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denies him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its
grounds that it is a bill of attainder and that it is vague and
overbroad, and dismissed the informations against the two accused. 
The Government appealed.  We resolved to treat its appeal as a
special civil action for certiorari.
II.  Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex-post facto law shall be enacted."[2] A bill of attainder
is a legislative act which inflicts punishment without trial.[3] Its
essence is the substitution of a legislative for a judicial determination
of guilt.[4] The constitutional ban against bills of attainder serves to
implement the principle of separation of powers[5] by confining
legislatures to rule-making[6] and thereby forestalling legislative
usurpation of the judicial function.[7] History in perspective, bills of
attainder were employed to suppress unpopular causes and political
minorities,[8]  and it is against this evil that the constitutional
prohibition is directed.  The singling out of a definite class, the
imposition of a burden on it, and a legislative intent, suffice to
stigmatize a statute as a bill of attainder. [9]
In the case at bar, the Anti-Subversion Act was, condemned by the
court aquo  as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present
and grave danger to the security of the Philippines.' " By means of
the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of
the CPP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and
voluntary member, the law is still a bill of attainder because it has
expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."
1.       When the Act is viewed in its actual operation, it will be seen
that it does not specify the Communist Party of the Philippines or the
members thereof for the purpose of punishment.  What it does is
simply to declare the Party to be an organized conspiracy for the
overthrow of the Government for the purposes of the prohibition,
stated in section 4, against membership in the outlawed
organization.  The term "Communist Party of the Philippines" is used
solely for definitional purposes.  In fact the Act applies not only to
the Communist Party of the Philippines but also to "any other
organization having the same purpose and their successors." Its focus
is not on individuals but on conduct.[10]
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of
1959[11] which, in U.S. vs. Brown,[12] was held to be a bill of attainder
and therefore unconstitutional.  Section 504 provided in its pertinent
parts as follows: 
“(a) No person who is or has been a member of the Communist Party
* * * shall serve:
"(1) as an officer, director, trustee, member of any executive board or
similar governing body, business agent, manager, organizer, or other
employee (other than as an employee performing exclusively clerical
or custodial duties) of any labor organization * * * 
* * *   * * * 
during or for five years after the termination of his membership in
the Communist Party * * * 
“(b) Any person who willfully violates this section shall be fined not
more than $10,000 or imprisoned for not more than one year, or
both."
This statute specifies the Communist Party, and imposes disability
and penalties on its members.  Membership in the Party, without
more, ipsofacto  disqualifies a person from becoming an officer or a
member of the governing body of any labor organization.  As the Communist movement * * *' 64 Stat 989, 50 USC sec. 782 (1958
Supreme Court of the United States pointed out:  ed.)

"Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
of attainder.  Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of such
positions to bring about political strikes.  In sec. 504, however,
Congress has exceeded the authority granted it by the Constitution.  definition not to be so narrow as to insure that the Party would
The statute does not set forth a generally applicable rule decreeing
that any person who commits certain acts or possesses certain
characteristics (acts and characteristics which, in Congress' view,
make them likely to initiate political strikes) shall not hold union
office, and leaves to courts and juries the job of deciding what
persons have committed the specified acts or possessed the specified
characteristics.  Instead, it designates in no uncertain terms the
persons who possess the feared characteristics and therefore cannot
hold union office without incurring criminal liability — members of
the Communist Party.
"A majority of the Court rejected the argument that the Act was a bill
of attainder, reasoning that sec. 3 does not specify the persons or
groups upon which the deprivations set forth in the Act are to be
imposed, but instead sets forth a general definition.  Although the
Board has determined in 1953 that the Communist Party was a
`Communist-action organization,' the Court found the statutory
always come within it: 
"In this proceeding the Board has found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtue of
the activities in which it now engages, comes within the terms of the
Act.  If the Party should at any time choose to abandon these
activities, after it is
once registered pursuant to sec. 7, the Act provides adequate means
of relief.  (367 US, at 87, 6 L ed 2d at 683)"

"Communist Party vs. Subversive Activities Control Board, 367 US Indeed, were the Anti-Subversion Act a bill of attainder, it would be
1, 6 Led 2 d 625, 81 S CT 1357, lends support to our conclusion.  totally unnecessary to charge Communists in court, as the law alone,
That case involved an appeal from an order by the Control Board without more, would suffice to secure their punishment.  But the
ordering the Communist Party to register as a 'Communist-action undeniable fact is that their guilt still has to be judicially established. 
organization,' under the Subversive Activities Control Act of 1950, The Government has yet to prove at the trial that the accused joined
64 Stat 987, 50 USC sec. 781 etseq. (1958 ed).  The definition of the Party knowingly, willfully and by overt acts, and that they joined
'Communist-action organization' which the Board is to apply is set the Party, knowing its subversive character and with specific intent
forth in sec. 3 of the Act:  to further its basic objective, i.e., to overthrow the existing
Government by force, deceit, and other illegal means and place the
" `[A]ny organization in the United States * * * which (i) is country under the control and domination of a foreign power.
substantially directed, dominated, or controlled by the foreign
government or foreign organization controlling the world As to the claim that under the statute organizational guilt is
Communist movement referred to in section 2 of this title, and (ii) nonetheless imputed despite the requirement of proof of knowing
operates primarily to advance the objectives of such world membership in the Party, suffice it to say that that is precisely the
nature of conspiracy, which has been referred to as a "dragnet
device" whereby all who participate in the criminal covenant are
liable.  The contention would be correct if the statute were construed
as punishing mere membership devoid of any specific intent to
further the unlawful goals of the Party.[13] But the statute specifically
requires that membership must be knowing  or active, with specific
intent to further the illegal objectives of the Party.  That is what
section 4 means when it requires that membership, to be unlawful,
must be shown to have been acquired "knowingly, willfully and by
overt acts."[14] The ingredient of specific intent to pursue the unlawful
goals of the Party must be shown by "overt acts."[15] Thisconstitutes  activities,[23] or which made it a crime for a member of the
an element of "membership" distinct from the ingredient of guilty
knowledge.  The former requires proof of direct participation in the
organization's unlawful activities, while the latter requires proof of
mere adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and
not activities, this feature is not enough to render it a bill of
attainder.  A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national
banks on the basis of a legislative finding that the persons mentioned
would be subject to the temptation to commit acts deemed inimical
to the national economy, has been declared not to be a bill of
attainder.[16]  Similarly, a statute requiring every secret, oath-bound
society having a membership of at least twenty to register, and
punishing any person who becomes a member of such society which
fails to register or remains a member thereof, was declared valid
even if in its operation it was shown to apply only to the members of
the Ku Klux Klan.[17]
In the Philippines the validity of section 23 (b) of the Industrial
Peace Act,[18]  requiring labor unions to file with the Department of
Labor affidavits of union officers "to the effect that they are not
members of the Communist Party and that they are not members of
any organization which teaches the overthrow of the Government by
force or by any illegal or unconstitutional method," was upheld by
this Court.[19]
Indeed, it is only when a statute applies either to named individuals
or to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial does it become a
bill of attainder.[20] It is upon this ground that statutes which
disqualified those who had taken part in the rebellion against the
Government of the United States during the Civil War from holding
office,[21] or from exercising their profession,[22]  or which prohibited
the payment of further compensation to individuals named in the Act
on the basis of a finding that they had engaged in subversive
Communist Party to serve as an officer or employee of a labor union,
[24]
 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not
needed fairly to make such determination.[25]
In New York ex rel. Bryant vs. Zimmerman,[26]  the New York
legislature passed a law requiring every secret, oath-bound society
with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing to
register.  While the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively.  In sustaining the
statute against the claim that it discriminated against the Ku Klux
Klan, while exempting other secret, oath-bound organizations like
masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan.  The Court said: 
"The courts below recognized the principle shown in the cases just
cited and reached the conclusion that the classification was justified
by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest
tendency on the part of one class to make the secrecy surrounding its
purposes and membership a cloak for acts and conduct inimical to
personal rights and public welfare, and (b) in the absence of such a
tendency on the part of the other class.  In pointing out this
difference one of the courts said of the Ku Klux Klan, the principal
association in the included class:  'It is a matter of common
knowledge that this organization functions largely at night, its
members disguised by hoods and gowns and doing things calculated
to strike terror into the minds of the people;' and later said of the
other class:  'These organizations and their purposes are well known,
many of them having been in existence for many years.  Many of
them are oath-bound and secret.  But we hear no complaint against
them regarding violation of the peace or interfering with the rights of
others.' Another of the courts said:  'It is a matter of common
knowledge that the association or organization of which the relator is
concededly a member exercises activities tending to the prejudice
and intimidation of sundry classes of our citizens.  But the legislation
is not confined to this society;' and later said of the other class
‘Labor unions have a recognized lawful purpose.  The benevolent
orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges
so that the legislature may well consider them beneficial rather than
harmful agencies.' The third court, after recognizing 'the
potentialities of evil in secret societies,' and observing that 'the
danger of certain organizations has been judicially demonstrated,' —
meaning in that state, said:  'Benevolent orders, labor unions and
college fraternities have existed for many years, and, while not
immune from hostile criticism, have on the whole justified their
existence."
"We assume that the legislature had before it such information as
was readily available, including the published report of a hearing,
before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the Ku
Klux Klan.  If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know
Nothing and the A.P.A. orders of other periods; that its membership
was limited to native-born, gentile, protestant whites; that in part of
its constitution and printed creed it proclaimed the widest freedom
for all and full adherence to the Constitution of the United States; in
another exacted of its members an oath to shield and preserve 'white
supremacy;' and in still another declared any person actively
opposing its principles to be ‘a dangerous ingredient in the body
politic of our country and an enemy to the weal of our national
commonwealth;' that it was conducting a crusade against Catholics,
Jews, and Negroes, and stimulating hurtful religious and race
prejudices; that it was striving for political power and assuming a
sort of guardianship over the administration of local, state and
national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes." [27]
In the Philippines the character of the Communist Party has been the
object of continuing scrutiny by this Court.  In 1932 we found the
Communist Party of the Philippines to be an illegal association. [28]  In
1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to
establish in the Philippines a communist form of government similar
to that of Soviet Russia and Red China."[29] More recently,
in Lansang vs. Garcia,[30]  we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts
among youth organizations such as the Kabataang Makabayan
(KM)  and the emergence of the New People's Army.  After
meticulously reviewing the evidence, we said:  "We entertain,
therefore, no doubts about the existence of a sizeable group of men
who have publicly risen in arms to overthrow the government and
have thus been and still are engaged in rebellion against the
Government of the Philippines."
3.  Nor is it enough that the statute specify persons or groups in order
that it may fall within the ambit of the prohibition against bills of
attainder.  It is also necessary that it must apply retroactively and
reach past conduct.  This requirement follows from the nature of a
bill of attainder as a legislative adjudication of guilt.  As Justice
Frankfurter observed, "frequently a bill of attainder was * * * doubly
objectionable because of its ex-post facto features.  This is the
historic explanation for uniting the two mischiefs in one clause —
'No Bill of Attainder or ex-post facto law shall be passed.' * * *
Therefore, if [a statute] is a bill of attainder it is also an ex-post
facto law.  But if it is not an ex-post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of
attainder."[31]
Thus in Gardner vs. Board of Public Works,[32] the U.S. Supreme
Court upheld the validity of the Charter of the City of Los Angeles
which provided:  imposed penalties without judicial trial."
"* * * [N]o person shall hold or retain or eligible for any public
office or employment in the service of the City of Los Angeles, in
any office or department thereof, either elective or appointive, who
has within five (5) years prior to the effective date of this section
advised, advocated, or taught, or who may, after this section
becomes effective, become a member of or affiliated with any group,
society, association, organization or party which advises, advocates
or teaches or has within said period of five (5) years advised,
advocated, or taught the overthrow by force or violence of the
Government of the United States of America or of the State of
California."
In upholding the statute, the Court stressed the prospective
application of the Act to the petitioner therein, thus:  incidence of legislation is such that the persons who engage in the
"* * * Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply retrospectively for a five-
year period to its effective date.  We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars
from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or teach the violent overthrow of
the Government or who are or become affiliated with any group
doing so.  The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by establishing
an employment qualification of loyalty to the State and the United
States.
"* * * Unlike the provisions of the charter and ordinance under
which petitioners were removed, the statute in the Lovett case did
not declare general and prospectively operative standards of
qualification and eligibility for public employment.  Rather, by its
terms it prohibited any further payment of compensation to named
individuals or employees.  Under these circumstances, viewed
against the legislative background, the statute was held to have
Indeed, if one objection to the bill of attainder is that Congress
thereby assumes judicial magistracy, then it must be demonstrated
that the statute claimed to be a bill of attainder reaches past conduct
and that the penalties it imposes are inescapable.  As the U.S.
Supreme Court observed with respect to the U.S. Federal Subversive
Activities Control Act of 1950:
"Nor is the statute made an act of 'outlawry' or of attainder by the
fact that the conduct which it regulates is described with such
particularity that, in probability, few organizations will come within
the statutory terms.  Legislatures may act to curb behaviour which
they regard as harmful to the public welfare, whether that conduct is
found to be engaged in by many persons or by one.  So long as the
regulated conduct, be they many or few, can escape regulation
merely by altering the course of their own present activities, there
can be no complaint of an attainder."[33]
This statement, mutatis mutandis, may be said of the Anti-
Subversion Act. Section 4 thereof expressly states that the
prohibition therein applies only to acts committed "After the
approval of this Act." Only those who "knowingly, willfully and by
overt acts affiliate themselves with, become or remain members of
the Communist Party of the Philippines and/or its successors or of
any subversive association" after June 20, 1957, are punished.  Those
who were members of the Party or of any other subversive
association at the time of the enactment of the law, were given the
opportunity of purging themselves of liability by renouncing in
writing and under oath their membership in the Party.  The law
expressly provides that such renunciation shall operate to exempt
such persons from penal liability.[34] The penalties prescribed by the
Act are therefore not inescapable.
III.   The Act and the Requirements of Due Process
1.  As already stated, the legislative declaration in section 2 of the
Act that the Communist Party of the Philippines is an organized
conspiracy for the overthrow of the Government is intended
not to provide the basis for a legislative finding of guilt of the
members of the Party but rather to justify the proscription spelled out
in section 4.  Freedom of expression and freedom of association are
so fundamental that they are thought by some to occupy a "preferred
position" in the hierarchy of constitutional values. [35]  Accordingly,
any limitation on their exercise must be justified by the existence of
a substantive evil.  This is the reason why before enacting the statute
in question Congress conducted careful investigations and then
stated its findings in the preamble, thus:  in each case is itself an ultimate conclusion founded on underlying
"* * *[T]he Communist Party of the Philippines, although
purportedly a political party, is in fact an organized conspiracy to
overthrow the Government of the Republic of the Philippines not
only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a
totalitarian regime subject to alien domination and control;
"* * * [T]he continued existence and activities of the Communist
Party of the Philippines constitutes a clear, present and grave danger
to the security of the Philippines;   Court in Lansang vs. Garcia,[38] is that "if laws are seen to have a
"* * * [I]n the face of the organized, systematic and persistent
subversion, national in scope but international in direction, posed by
the Communist Party of the Philippines and its activities, there is
urgent need for special legislation to cope with this continuing
menace to the freedom and security of the country."
In truth, the constitutionality of the Act would be open to question if,
instead of making these findings in enacting the statute, Congress
omitted to do so.
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial court failed to take proper account of the
distinction between legislativefact and adjudicativefact.  Professor
Paul Freund elucidates the crucial distinction, thus: 
"* * *A law forbidding the sale of beverages containing more than
3.2 per cent of alcohol would raise a question of legislative fact, i.e.,
whether this standard has a reasonable relation to public health,
morals, and the enforcement problem.  A law forbidding the sale of
intoxicating beverages (assuming it is not so vague as to require
supplementation by rule-making) would raise a question of
adjudicative fact, i.e., whether this or that beverage is intoxicating
within the meaning of the statute and the limits on governmental
action imposed by the Constitution.  Of course what we mean by fact
facts and on criteria of judgment for weighing them.
"A conventional formulation is that legislative facts those facts
which are relevant to the legislative judgment will not be canvassed
save to determine whether there is a rational basis for believing that
they exist, while adjudicative facts those which tie the legislative
enactment to the litigant - are to be demonstrated and found
according to the ordinary standards prevailing for judicial trials." [36]
The test formulated in Nebbia vs. New York,[37] and adopted by this
reasonable relation to a proper legislativepurpose, and are neither
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a
court functusofficio." The recital of legislative findings implements
this test.
With respect to a similar statement of legislative findings in the U.S.
Federal Subversive Activities Control Act of 1950 (that
"Communist-action organizations" are controlled by the foreign
government controlling the world Communist movement and that
they operate primarily to "advance the objectives of such world
Communist movement"), the U. S. Supreme Court said:  explicitly described in section 4 thereof), Congress reaffirmed its
"It is not for the courts to reexamine the validity of these legislative
findings and reject them.  * * * They are the product of extensive
investigation by Committees of Congress over more than a decade
and a half.  Cf. Nebbia vs. New York, 291 U.S. 502, 516, 530.  We
certainly cannot dismiss them as unfounded or irrational imaginings.  has been held as a sufficient basis for penalizing membership in a
* * * And if we accept them, as we must, as a not unentertainable
appraisal by Congress of the threat which Communist organizations
pose not only to existing government in the United States, but to the
United States as a sovereign, independent Nation.  * * we must
recognize that the power of Congress to regulate Communist
organizations of this nature is extensive."[39]
This statement, mutatis mutandis, may be said of the legislative
findings articulated in the Anti-Subversion Act.
That the Government has a right to protect itself against subversion
is a proposition too plain to require elaboration.  Self-preservation is
the "ultimate value" of society.  It surpasses and transcends every
other value, "for if a society cannot protect its very structure from
armed internal attack, * * * no subordinate value can be
protected."[40] As Chief Justice Vinson so aptly said in Dennis vs.
United States:[41]  the Communist Party of the Philippines, to be unlawful, must be
"Whatever theoretical merit there may be to the argument that there
is a 'right' to rebellion against dictatorial governments is without
force where the existing structure of government provides for
peaceful and orderly change.  We reject any principle of
governmental helplessness in the face of preparation for revolution,
which principle, carried to its logical conclusion, must lead to
anarchy.  No one could conceive that it is not within the power of
Congress to prohibit acts intended to overthrow the government by
force and violence."
2.  By carefully delimiting the reach of the Act to conduct (as
respect for the rule that "even though the governmental purpose be
legitimate and substantial, that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties when the end can
be more narrowly achieved."[42]The requirement
of knowing membership, as distinguished from nominal membership,
subversive organization.[43] For, as has been stated: 
"Membership in an organization renders aid and encouragement to
the organization; and when membership is accepted or retained with
knowledge that the organization is engaged in an unlawful purpose,
the one accepting or retaining membership with such knowledge
makes himself a party to the unlawful enterprise in which it is
engaged."[44]
3. The argument that the Act is unconstitutionally overbroad because
section 2 merely speaks of "overthrow" of the Government and
overthrow may be achieved by peaceful, means, misconceives the
function of the phrase "knowingly, willfully and by overt acts" in
section 4.  Section 2 is merely a legislative declaration; the
definitions of and the penalties prescribed for the different acts
proscribed are stated in section 4 which requires that membership in
acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear that the overthrow contemplated is
"overthrow not only by force and violence but also by deceit,
subversion and other illegal means." The absence of this
qualification in section 2 appears to be due more to an oversight
rather than to deliberate omission.
Moreover, the word "overthrow" sufficiently connotes the use of
violent and other illegal means.  Only in a metaphorical sense may
one speak of peaceful overthrow of governments, and certainly the
law does not speak in metaphors.  In the case of the Anti-Subversion
Act, the use of the word "overthrow" in a metaphorical sense is
hardly consistent with the clearly delineated objective of the
"overthrow," namely, "establishing in the Philippines a totalitarian
regime and place [sic] the Government under the control and
domination of an alien power." What this Court once said in a
prosecution for sedition is apropos:  "The language used by the
appellant clearly imported an overthrow of the Government by
violence, and it should be interpreted in the plain and obvious sense
in which it was evidently intended to be understood.  The word
'overthrow' could not have been intended as referring to an ordinary
change by the exercise of the elective franchise.  The use of the whip
[which the accused exhorted his audience to use against the
Constabulary], an instrument designed to leave marks on the sides of
adversaries, is inconsistent with the mild interpretation which the
appellant would have us impute to the language."[45]
 IV.  The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to
overthrow the Government by force, violence or other illegal means.  accommodating the exigencies of self-preservation and the values of
Whatever interest in freedom of speech and freedom of association is
infringed by the prohibition against knowing membership in the
Communist Party of the Philippines, is so indirect and so
insubstantial as to be clearly and heavily outweighed by the
overriding considerations of national security and the preservation of
democratic institutions in this country.
The membership clause of the U.S. Federal Smith Act is similar in
many respects to the membership provision of the Anti-Subversion
Act.  The former provides: 
"Whoever organizes or helps or attempts to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any such government by force or
violence; or becomes or is a member of, or affiliated with, any such
society, group or assembly of persons, knowing the purpose thereof -
"Shall be fined not more than $20,000 or imprisoned not more than
twenty years, or both, and shall be ineligible for employment by the
United States or any department or agency thereof, for the five years
next following his conviction.  * * *”[46]
In sustaining the validity of this provision, the Court said in Scales
vs. United States:[47] 
"It was settled in Dennis that advocacy with which we are here
concerned is not constitutionally protected speech, and it was further
established that a combination to promote such advocacy, albeit
under the aegis of what purports to be a political party, is not such
association as is protected by the first Amendment.  We can discern
no reason why membership, when it constitutes a purposeful form of
complicity in a group engaging in this same forbidden advocacy,
should receive any greater degree of protection from the guarantees
of that Amendment."
Moreover, as was held in another case, where the problems of
liberty are as complex and intricate as in the situation described in
the legislative findings stated in the U.S. Federal Subversive
Activities Control Act of 1950, the legislative judgment as to how
that threat may best be met consistently with the safeguards of
personal freedoms is not to be set aside merely because the judgment
of judges would, in the first instance, have chosen other methods. [48] 
For in truth, legislation, "whether it restrains freedom to hire or
freedom to speak, is itself an effort at compromise between the
claims of the social order and individual freedom, and when the
legislative compromise in either case is brought to the judicial test
the court stands one step removed from the conflict and its resolution
through law."[49]
V.  The Act and its Title
The respondent Tayag invokes the constitutional command that "no
bill which may be enacted into law shall embrace more than one
subject which shall be expressed in the title of the bill." [50]
What is assailed as not germane to or embraced in the title of the Act
is the last proviso of section 4 which reads:  technical construction is to be avoided, and the statute will be read
"And provided, finally, That one who conspires with any other
person to overthrow the Government of the Republic of the
Philippines, or the government of any of its political subdivisions by
force, violence, deceit, subversion or illegal means, for the purpose
of placing such Government or political subdivision under the
control and domination of any alien power, shall be punished
by prision correccional to prision mayor with all the accessory
penalties provided therefor in the same code."
It is argued that the said proviso, in reality, punishes not only
membership in the Communist Party of the Philippines or similar
associations, but as well "any conspiracy by two persons to
overthrow the national or any local government by illegal means,
even if their intent is not to establish a totalitarian regime, but a
democratic regime, even if their purpose is not to place the nation
under an alien communist power, but under an alien democratic
power like the United States or England or Malaysia or even an anti-
communist power like Spain, Japan, Thailand or Taiwan or
Indonesia."
The Act, in addition to its main title ("An Act to Outlaw the
Communist Party of the Philippines and Similar Associations,
Penalizing Membership Therein, and for Other Purposes"), has a
short title.  Section 1 provides that' "This Act shall be known as the
Anti-Subversion Act." Together with the main title, the short title of
the statute unequivocally indicates that the subject-matter is
subversion in general which has for its fundamental purpose the
substitution of a foreign totalitarian regime in place of the existing
Government and not merely subversion by Communist conspiracies.
The title of a bill need not be a catalogue or an index of its contents,
and need not recite the details of the Act. [51]  It is a valid title if it
indicates in broad but clear terms the nature, scope, and
consequences of the proposed law and its operation. [52]  A narrow or
fairly and reasonably in order not to thwart the legislative intent.  We
hold that the Anti-Subversion Act fully satisfies these requirements.
VI.   Conclusion and Guidelines
In conclusion, even as we uphold the validity of the Anti-Subversion
Act, we cannot overemphasize the need for prudence and
circumspection in its enforcement, operating as it does in the
sensitive area of freedom of expression and belief.  Accordingly, we
set the following basicguidelines  to be observed in any prosecution
under the Act.  The Government, in addition to proving such
circumstances as may affect liability, must establish the following
elements of the crime of joining the Communist Party of the
Philippines or any other subversive association: 
(1)    In the case of subversive organizations other than the
Communist Party of the Philippines, (a) that the purpose of the
organization is to overthrow the present Government of the
Philippines and to establish in this country a totalitarian regime
under the domination of a foreign power; (b) that the accused joined
such organization; and (c) that he did so knowingly, willfully and by
overt acts; and
(2)    In the case of the Communist Party of the Philippines, (a) that
the CPP continues to pursue the objectives which led Congress in
1957 to declare it to be an organized conspiracy for the overthrow of
the Government by illegal means for the purpose of placing the
country under the control of a foreign power; (b) that the accused
joined the CPP; and (c) that he did so willfully, knowingly and by
overt acts.
We refrain from making any pronouncement as to the crime of
remaining a member of the Communist Party of the Philippines or of
any other subversive association; we leave this matter to future
determination.
ACCORDINGLY , the questioned resolution of September 15,
1970 is set aside, and these two cases are hereby remanded to the
court aquo for trial on the merits.  Costs deoficio.
Makalintal, Zaldivar, Teehankee, Barredo, and Esguerra,
JJ., concur.
Concepcion, C.J., concurs in the result.
Fernando, J., dissents in a separate opinion.
Makasiar and Antonio, JJ., took no part.
 Rep. Act No. 1700, 12 Laws & Res. 102 (1957).  The text of the
[1]
statute is hereunder reproduced in full: 
“AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE
PHILIPPINES AND SIMILAR ASSOCIATIONS, PENALIZING
MEMBERSHIP THEREIN, AND FOR OTHER PURPOSES. 
"WHEREAS, the Communist Party of the Philippines, although
purportedly a political party, is in fact an organized conspiracy to
overthrow the Government of the Republic of the Philippines not
only by force and violence but also by deceit, subversion and other
illegal means, for the purpose of establishing in the Philippines a
totalitarian regime subject to alien domination and control;
"WHEREAS, the continued existence and activities of the
Communist Party of the Philippines constitutes a clear, present and
grave danger to the security of the Philippines; and  
"WHEREAS, in the face of the organized, systematic and persistent
subversion, national in scope but international in direction, posed by
the Communist Party of the Philippines and its activities, there is
urgent need for special legislation to cope with this continuing
menace to the freedom and security of the country:  Now, therefore,
"Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled: 
"SECTION 1.  This Act shall be known as Anti-Subversion Act. 
"SECTION 2.  The Congress hereby declares the Communist Party
of the Philippines to be an organized conspiracy to overthrow the
Government of the Republic of the Philippines for the purpose of
establishing in the Philippines a totalitarian regime and place the
Government under the control and domination of an alien power. 
The said party and any other organization having the same purpose
and their successors are hereby declared illegal and outlawed.
"SECTION 3.  As used in this Act, the term 'Communist Party of the
Philippines' shall mean and include the organizations now known as
the Communist Party of the Philippines and its military arm,
the HukbongMapagpalaya ng Bayan, formerly known as
HUKBALAHAPS, and any successors of such organizations.   same to the party concerned, who shall have the right to be
"SECTION 4.  After the approval of this Act, whoever knowingly,
willfully and by over acts affiliates himself with, becomes or remains
a member of the Communist Party of the Philippines and/or its
successor or of any subversive association as defined in section two
hereof, shall be punished by the penalty of arresto mayor and shall
be disqualified permanently from holding any public office,
appointive and elective, and from exercising the right to vote; in case
of a second conviction, the principal penalty shall be prision
correccional, and in all subsequent convictions the penalty of prision
mayor  shall be imposed; and any alien convicted under this Act
shall be deported immediately after he shall have served the sentence
imposed upon him:  Provided, That if such member is an officer or a
ranking leader of the Communist Party of the Philippines or of any
subversive association as defined in section two hereof, or if such
member takes up arms against the Government, he shall be punished
by prision mayor to death with all the accessory penalties provided
therefor in the Revised Penal Code:  And provided, finally, That one
who conspires with any other person to overthrow the Government
of the Republic of the Philippines or the government of any of its
political subdivisions by force, violence, deceit, subversion or other
illegal means, for the purpose of placing such Government or
political subdivision under the control and domination of any alien
power, shall be punished by prision correccional to prision
mayor with all the accessory penalties provided therefor in the same
Code.
"SECTION 5.  No prosecution under this Act shall be made unless
the city or provincial fiscal, or any special attorney or prosecutor
duly designated by the Secretary of Justice as the case may be, finds
after due investigation of the facts, that a prima facie  case for
violation of this Act exists against the accused, and thereafter
presents an information in court against the said accused in due form,
and certifies under oath that he has conducted a proper preliminary
investigation thereof, with notice, whenever it is possible to give the
represented by counsel, to testify, to have compulsory process for
obtaining witnesses in his favor, and to cross-examine witnesses
against him.  Provided, That the preliminary investigation of any
offense defined and penalized herein by prision mayor to death shall
be conducted by the proper Court of First Instance.  
"SECTION 6.  Any person who knowingly furnishes false evidence
in any action brought under this Act shall be punished by prision
correccional.
"SECTION 7.  No person shall be convicted of any of the offenses
penalized herein with prision mayor  to death unless on the testi-
mony of at least two witnesses to the same overt act or on confession
of the accused in open court.  
"SECTION 8.  Within thirty days after the approval of this Act, any
person who is a member of the Communist Party of the Philippines
or of any such association or conspiracy, who desires to renounce
such membership, may do so in writing and under oath before a
municipal or city mayor, a provincial governor, or a person
authorized by law to administer oaths.  Such renunciation shall
exempt such person or persons from the penal sanction of this Act,
but the same shall in no way exempt him liability for criminal acts or
for any violation of the existing laws of the Republic of the
Philippines committed before this Act takes effect.
"SECTION 9.  Nothing in this Act shall be interpreted as a restric-
tion to freedom of thought, of assembly and of association for
purposes not contrary to law as guaranteed by the Constitution.  
"SECTION 10.  This Act shall take effect upon its approval. 
"Approved.  June 20, 1957."
  Delegate Jose P. Laurel (of the 1934 Constitutional Convention)
[2]
referred to the Anglo-American origin of this right, thus:  ment, and vindictive malice.' (Calder vs. Bull, supra.) A well known
"No ex post facto law or bill of attainder shall be enacted.  This
provision is found in the American Federal Constitution (Art. 1, Sec.
9) and is applicable to the States (id Sec. 10).  An ex-post facto  law
is a law which makes an act punishable in a manner in which it was
not punishable when committed.  It creates or aggravates the crime
or increases the punishment, or changes the rules of evidence for the
purpose of conviction.  The prohibition against the passage of ex-
post facto  laws is an additional bulwark of personal security
protecting the citizen from punishment by legislative act which has a
retrospective operation.
"The phrase ex-post facto has a technical meaning and refers to
crimes and criminal proceedings.  It is in this sense that it was used
in England.  It was in this sense that the convention of 1787
understood it.  (Calder vs. Bull, supra; Watson vs. Mercer, 8 Pet. 88,
110; Suterlee vs. Mathewson, 2 Peters, 380; Kring vs. Missouri, 107
U.S. 221.) This interpretation was upheld by our Supreme Court
(U.S. vs. Ang Ken Ko, 6 Phil. 376.)  
"A bill of attainder is a legislative act which inflicts punishment
without judicial trial.  (Cummings vs. United States, 4 Wall. 277, 18
L ed 356.) In England, the Bill of Attainder was an act of Parliament
by which a man was tried, convicted and sentenced to death without
a jury, without a hearing in court, without hearing the witnesses
against him and without regard to the rules of evidence.  His blood
was attainted or corrupted, rendering him devoid of all heritable
quality — of acquiring and disposing property by descent.  (Ex Parte
Garland, 4 Wall. 333, 18 L ed 366.) If the penalty imposed was less
than death, the act was known as a "bill of pains and penalties." Bills
of attainder, like ex-post facto laws, were favorite methods of Stuart
oppression.  Once, the name of Thomas Jefferson was included in a
bill of attainder presented to Parliament because of his reform
activities.
"Often, such bills were 'stimulated by ambition or personal resent-
case illustrating the ruthless manner in which a bill of attainder was
resorted to was that of Thomas Wentworth, chief adviser of Charles
I.  He was brought to impeachment charged with attempting to
subvert the liberties of England.  He defended himself so ably that
his enemies, fearing his acquittal, withdrew the impeachment and a
bill of attainder was passed instead.  Wentworth was beheaded.  Bills
of attainder were also passed in the Colonies (North, The
Constitution of the U.S., its Sources and Applications, p. 85.) The
prohibition in the Bill of Rights, therefore, seeks to prevent acts of
violence and injustice brought about by the passage of such bills." (3
J. Laurel, Proceedings of the Constitutional Convention 661-662
[1966].)
 Cummings vs.  United States, 4 Wall. (71 U.S.) 277 (1867);
[3]
accord, Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867). This
definition was adopted by this Court in People vs. Carlos, 78 Phil.
535, 544 (1947) and in People vs. Montenegro, 91 Phil. 883, 885
(1952).
 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United
[4]
States vs. Lovett, 328 U.S. 303, 315 (1946).
 Chief Justice Warren referred to the Bill of Attainder Clause as an
[5]
implementation of the separation of powers, "a general safeguard
against legislative exercise of judicial function, or more simply, trial
by legislature." United States vs. Brown, 381 U.S. 437 (1964).
 "It is the peculiar province of the legislature to prescribe general
[6]
rules for the government of society; the application of those rules to
individuals in society would seem to be the duty of other depart-
ments." Fletcher vs. Peck, 6 Cranch (10 U.S.) 87, 136 (1810).
 "The legislative body in enacting bills of attainder exercises the
[7]
powers and office of judge, it pronounces upon the guilt of the party,
without any of the forms or safeguards of trial * * * it fixes the  During the Senate deliberations on the bill, Senator Cea
[15]

degree of punishment in accordance with its own notions of the
enormity of the offense." Cummings vs. Missouri, supra note 3.
 Bills of this sort, says Mr. Justice Story, have been most usually
[8]
passed in England in times of rebellion or gross subserviency to the
crown, or of violent political excitements; periods, in which all
nations are most liable (as well as free as the enslaved) to forget their
remarked: "I have inserted the words 'overt acts' because we are
punishing membership in the Communist Party. I would like that
membership to be proved by overt acts, by positive acts, because it
may happen that one's name may appear in the list of members.”
Senate Cong. Rec. May 22, 1957, p. 1900.
 Board of Governors of Federal Reserve System vs. Agnew, 329
[16]

duties, and to trample upon the rights and liberties of others." Comm. U.S. 441.
sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During the
American revolution legislative punishments had been continued by  New York ex rel. Bryant vs. Zimmerman, 278 U.S. 63 (1928).
[17]

state legislatures when numerous bills of attainder were enacted

against the Torries. 1 C. Artieu, Modern Constitutional Law 425.  Repealed by Rep. Act 4241.
[18]

 C. Antieu, supra note 8 at 423.

[9]
 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor,
[19]

Feb. 27, 1969, 27 SCRA 40.

 The Supreme Court of the United States said in Fleming vs.
[10]

Nestor, 363 U.S. 603, 613-14 (1960): "In determining whether  United States vs. Lovett, 328 U.S. 303 (1946).
[20]

legislation which bases a disqualification on the happening of a

certain past event imposes a punishment, the Court has sought to  Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).
[21]

discern the objects on which the enactment in question was

focused. Where the source of legislative concern can be thought to  Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).
[22]
be the activity or status from which the individual is barred, the
disqualification is not punishment even though it may bear harshly
 United States vs. Lovett, 328 U.S. 303 (1946).
[23]
upon one affected."
 United States vs. Brown, 381 U.S. 437 (1965).
[24]
[11]
 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).
 The Bounds of Legislative Specification: A Suggested Approach
[25]
[12]
 381 U.S. 437 (1965) (5-4 vote).
to the Bill of Attainder Clause, 72 Yale L.J. 330, 351-54 (1962).
 Keyishian vs. Board of Regents, 385 U.S. 589 (1967);
[13]
 278 U.S. 63 (1928).
[26]
Elfbrandt vs. Russell, 384 U.S. 11 (1966).
 Id. at 75-77.
[27]
 Cf. Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United
[14]

States, 367 U.S. 290 (1961).

  People vs.  Evangelista, 57 Phil. 375 (1932); seealso People vs.
[28]
 Scales vs. United States, 367 U.S. 203 (1961); seealso
[43]

Evangelista, 57 Phil. 372 (1932); People vs. Capadocia, 57 Phil. 364 Noto vs. United States, 367 U.S. 290 (1961).
(1932); People vs. Evangelista, 57 Phil. 354 (1932); People vs.
Feleo, 57 Phil. 451 (1932); People vs. Nabong, 57 Phil. 455 (1932).  Frankfeld vs. United States, 198 F 2d. 879 (4th Cir. 1952).
[44]

 People vs. Lava, L-4974-78, May 16, 1969.

[29]
 People vs. Nabong, 57 Phil. 455, 458 (1932)
[45]

 L-33864, Dec. 11, 1971, 42 SCRA 448.

[30]
 18 U.S.C. sec. 2385. (italics supplied)
[46]

 United States vs. Lovett, 328 U.S. 303, 318 (1946).

[31]
 367 U.S. 203 (1961).
[47]

 341 U.S. 716 (1951).

[32]
 Communist Party vs. Subversive Activities Control Board, 367
[48]

U.S. 1 (1961).
 Communist Party vs. Subversive Activities Control Board, 367
[33]

U.S. 1 (1960).  P.A. Freund, The Supreme Court of the United States 75 (1961).
[49]

 Sec. 8.
[34]
 Const., art. VI, Sec. 21 (1).
[50]

 E.g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-

[35]

25721, May 26, 1969, 28 SCRA 351.

DISSENTING OPINION
 Freund, Review of Facts in Constitutional Cases, in Supreme
[36]

Court and Supreme Law 47-48 (Cahn ed. 1954). FERNANDO, J.:

 291 U.S. 502, 537 (1934).

[37]
It is with regret that I find myself unable to join the rest of my
brethren in the decision reached upholding the validity of the Anti-
 L-33964, Dec. 11, 1971, 41 SCRA 448.
[38]
Subversion Act.[1] It is to be admitted that the learned and scholarly
opinion of Justice Castro has the impress of conscientious and
 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).
[39]
painstaking scrutiny of the constitutional issues raised.  What is
more, the stress in the concluding portion thereof on basic guidelines
 Dennis vs. United States, 341 U.S. 494, 509 (1951).
[40]
that will assure in the trial of those prosecuted under such Act
respect for their constitutional rights is to be commended.  Nonethe-
 Id. at 501.
[41] less, my own reading of the decisions cited, interpreting the bill of
attainder clause[2]  coupled with the fears, perhaps induced by a too-
 Shelton vs. Tucker, 364 U.S. 479 (1960).
[42] latitudinarian construction of the guarantees of freedom of belief and
expression[3] as well as freedom of association[4] as to impermissible
inroads to which they may be exposed, compels a different
conclusion.  Hence this dissent.
1.       There is to be sure no thought on my part that the equally
pressing concern of state safety and security should be ignored.  The
political branches of the government would lay themselves open to a
justifiable indictment for negligence had they been remiss in their
obligation to safeguard the nation against its sworn enemies.  In a
simpler era, where the overthrow of the government was usually
through the rising up in arms, with weapons far less sophisticated
than those now in existence, there was no constitutional issue of the
magnitude that now confronts us.  Force has to be met with force.  It
was as clear-cut as that.  Advances in science as well as more subtle
methods of inducing disloyalty and weakening the sense of
allegiance have introduced complexities in coping with such
problems.  There must be then, and I am the first to recognize it, a
greater understanding for the governmental response to situations of
that character.  It is in that light that the validity of the Anti-
Subversion Act is to be appraised.  From my standpoint, and I am not
presumptuous enough to claim that it is the only perspective or that
is the most realistic, I feel that there was an insufficient appreciation
of the compulsion of the constitutional commands against bills of
attainder and abridgment of free speech.  I am comforted by the
thought that even had my view prevailed, all that it would mean is
that a new legislation, more in conformity to my way of thinking to
what is ordained by the fundamental law, would have to be enacted.  doctors, ministers, and other professionals must disavow that they
No valid fear need be entertained then that a setback would be
occasioned to legitimate state efforts to stem the tide of subversive
activities, in whatever form manifested.
2.       The starting point in any inquiry as to the significance of the
bill of attainder clause is the meaning attached to it by the
Constitutional Convention of 1934 and by the people who adopted
it.  As was explained by the then Delegate, later Justice, Jose P.
Laurel in his address on November 19, 1934 as Chairman of the
Committee on the Bill of Rights quoted in the opinion of the Court: 
"A bill of attainder is a legislative act which inflicts punishment
without judicial trial.  (Cummings vs. United States, 4 Wall. 277, 18
L ed 356).  In England, the Bill of Attainder was an act of Parliament
by which a man was tried, convicted and sentenced to death without
a jury, without a hearing in court, without hearing the witnesses
against him and without regard to the rules of evidence.  His blood
was attainted or corrupted, rendering him devoid of all heritable
quality — of acquiring and disposing property by descent.  (Ex parte
Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act was known as a 'bill of pains and penalties.' Bills
of attainder, like ex-post facto  laws, were favorite methods of Stuart
oppression.  Once, the name of Thomas Jefferson was included in a
bill of attainder presented to Parliament because of his reform
activities."[5]Two American Supreme Court decisions were thus in
the minds of the framers.  They are Cummings vs. Missouri[6] and Ex
parte Garland.[7]  They speak unequivocally.  Legislative acts, no
matter what their form, that apply either to named individuals or
easily ascertainable members of a group in such a way as to inflict on
them punishment amounting to a deprivation of any right, civil or
political, without judicial trial are bills of attainder prohibited by the
Constitution.[8]
Cummings vs. Missouri[9]  was a criminal prosecution of a Catholic
priest for refusing to take the loyalty oath required by the state
Constitution of Missouri of 1865.  Under such a provision, lawyers,
had ever, "by act or word," manifested a "desire" for the success of
the nation's enemies or a sympathy" with the rebels of the American
Civil War.  If they swore falsely, they were guilty of perjury.  If they
engaged in their professions without the oath, they were criminally
liable.  The United States Supreme Court condemned the provision
as a bill of attainder, identified as any legislative act inflicting
punishment without judicial trial.  The deprivation of any right, civil
or political, previously enjoyed, amounted to a punishment.  Why
such a conclusion was unavoidable was explained in the opinion of
Justice Field thus:  "A bill of attainder is a legislative act, which
inflicts punishment without a judicial trial.  If the punishment be less
than death, the act is termed a bill of pains and penalties.  Within the
meaning of the Constitution, bills of attainder include bills of pains
and penalties.  In these cases the legislative body, in addition to its
legitimate functions, exercises the powers and office of judge; it
assumes, in the language of the textbooks, judicial magistracy; it
pronounces upon the guilt of the party, without any of the forms or
safeguards of trial; it determines the sufficiency of the proofs
produced, whether conformable to the rules of evidence or
otherwise; and it fixes the degree of punishment in accordance with
its own notions of the enormity of the offense.  * * * If the clauses of
the 2d article of the Constitution of Missouri, to which we have
referred, had in terms declared that Mr. Cummings was guilty, or
should be held guilty, of having been in armed hostility to the United
States, or of having entered that state to avoid being enrolled or
drafted into the military service of the United States and, therefore,
should be deprived of the right to preach as a priest of the Catholic
church, or to teach in any institution of learning, there could be no
question that the clauses would constitute a bill of attainder within
the meaning of the Federal Constitution.  If these clauses, instead of
mentioning his name, had declared that all priests and clergymen
within the state of Missouri were guilty of these acts, or should be
held guilty of them, and hence be subjected to the like deprivation,
the clauses would be equally open to objection.  And further, if these
clauses had declared that all such priests and clergymen should be so
held guilty, and be thus deprived, provided they did not, by a day
designated, do certain specified acts, they would be no less within
the inhibition of the Federal Constitution.  In all these cases there
would be the legislative enactment creating the deprivation, without
any of the ordinary forms and guards provided for the security of the
citizen in the administration of justice by the established
tribunals."[10]
On the very same day that the ruling in Cummings was handed
down, Ex parte Garland[11]  was also decided.  That was a motion for
leave to practice as an attorney before the American Supreme Court. 
Petitioner Garland was admitted to such bar at the December term of
1860.  Under the previous rules of such Court, all that was necessary
was that the applicant have three years practice in the state courts to
which he belonged.  In March 1865, the rule was changed by the
addition of a clause requiring that an oath be taken under the
Congressional acts of 1862 and 1865 to the effect that such candidate
for admission to the bar had never voluntarily borne arms against the
United States.  Petitioner Garland could not in conscience subscribe
to such an oath, but he was able to show a presidential pardon
extended on July 15, 1865.  With such act of clemency, he moved
that he be allowed to continue in practice contending that the test
oath requirement was unconstitutional as a bill of attainder and that
at any rate, he was pardoned.  The same ruling was announced by the
Court again through Justice Field.  Thus:  "In the exclusion which
the statute adjudges, it imposes a punishment for some of the acts
specified which were not punishable at the time they were
committed; and for other of the acts it adds a new punishment to that
before prescribed, and it is thus brought within the further inhibition
of the Constitution against the passage of an ex post facto law.  In the
case of Cummings vs. Missouri, just decided, * * we have had
occasion to consider at length the meaning of a bill of attainder and
of an ex-post facto  law in the clause of the Constitution forbidding
their passage by the states, and it is unnecessary to repeat here what
we there said.  A like prohibition is contained in the Constitution
against enactments of this kind by Congress; and the argument
presented in that case against certain clauses of the Constitution of
Missouri is equally applicable to the act of Congress under
consideration in this case."[12]
There was a reiteration of the Cummings and Garland doctrine in
United States vs. Lovett,[13]  decided in 1946.  There it was shown
that in 1943 the respondents, Lovett, Watson, and Dodd, were and
had been for several years working for the government.  The
government agencies, which had lawfully employed them, were fully
satisfied with the quality of their work and wished to keep them
employed on their jobs.  Over their protest, Congress provided in
Section 304 of the Urgent Deficiency Appropriation Act of 1943, by
way of an amendment attached to the House Bill, that after
November 15, 1943, no salary or compensation should be paid
respondent out of any money then or thereafter appropriated except
for services as jurors or members of the armed forces, unless they
were prior to November 15, 1943, again appointed to jobs by the
President with the advice and consent of the Senate.  Communist Party to serve as an officer or, except in clerical or
Notwithstanding such Congressional enactment, and the failure of
the President to reappoint the respondents, the agencies kept all the
respondents at work on their jobs for varying periods after November
15, 1943, but their compensation was discontinued after that date.  to theExecutive Board of Local 10 of the International Longshore-
Respondents brought this action in the Court of Claims for the
salaries to which they felt entitled.  The American Supreme Court
stated that its inquiry was thus confined to whether the action in the
light of proper construction of the Act presented a justiciable
controversy, and, if so, whether Section 304 is a bill of attainder
insofar as the respondents were concerned.
After holding that there was a justiciable view, the American
Supreme Court in an opinion by Justice Black categorically
affirmed:  "We hold that Section 304 falls precisely within the
category of Congressional actions which the Constitution barred by
providing that 'No Bill of Attainder or ex post facto Law shall be
passed.' In Cummings vs. State of Missouri, * * * this Court said, 'A
bill of attainder is a legislative act which inflicts punishment without
a judicial trial.  If the punishment be less than death; the act is termed
a bill of pains and penalties.  Within the meaning of the Constitution,
bills of attainder include bills of pains and penalties.' * * * On the
same day the Cummings case was decided, the Court, in Ex parte
Garland, also held invalid on the same grounds an Act of Congress
which required attorneys practicing before this Court to take a
similar oath.  Neither of these cases has ever been overruled.  They
stand for the proposition that legislative acts, no matter what their
form, that apply either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them
without a judicial trial are bills of attainder prohibited by the
Constitution.  Adherence to this principle requires invalidation of
Section 304.  We do adhere to it."[14]
United States vs. Brown[15]  a 1965 decision was the first case to
review a conviction under the Labor-Management Reporting and
Disclosure Act of 1959, making it a crime for a member of the
custodial positions, an employee of a labor union.  Respondent
Brown, a longshoreman on the San Francisco docks, and an open and
avowed Communist, for more than a quarter of a century was elected
men's and Warehousemen's Union for consecutive one-year terms in
1959, 1960, and 1961.  On May 24, 1961, respondent was charged in
a one-count indictment returned in a district court of California with
serving as a member of an executive board of a labor organization
while a member of the Communist Party, in willful violation of the
above provision.  The question of its validity under the bill of
attainder clause was thus properly raised for adjudication.  While
convicted in the lower court, the Court of Appeals for the Ninth
Circuit reversed.  It was sustained by the American Supreme Court. 
As noted in the opinion by Chief Justice Warren, "the wide variation
in form, purpose and effect of ante-Constitution bills of attainder
indicates that the proper scope of the Bill of Attainder Clause, and its
relevance to contemporary problems, must ultimately be sought by
attempting to discern the reasons for its inclusion in the Constitution,
and the evils it was designed to eliminate.  The best available
evidence, the writings of the architects of our constitutional system,
indicates that the Bill of Attainder Clause was intended not as a
narrow, technical (and therefore soon to be outmoded) prohibition,
but rather as an implementation of the separation of powers, a
general safeguard against legislative exercise of the judicial function,
or more simply — trial by legislature."[16]  Then after referring to
Cummings, Garland, and Lovett, Chief Justice Warren continued: 
"Under the line of cases just outlined, Sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
of attainder.  Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use such
positions to bring about political strikes.  In Sec. 504, however,
Congress has exceeded the authority granted it by the Constitution.  legislature."[19]
The statute does not set forth a generally applicable rule decreeing
that any person who commits certain acts or possesses certain
characteristics (acts and characteristics which, in Congress' view,
make them likely to initiate political strikes) shall not hold union
office, and leave to courts and juries the job of deciding what persons
have committed the specified acts or possessed the specified
characteristics.  Instead, it designates in no uncertain terms the
persons who possess the feared characteristics and therefore cannot
hold union office without incurring criminal liability — members of
the Communist Party."[17]
Even Communist Party vs. Subversive Activities Control Board,[18]  a holding of its explicit character as shown by this excerpt from the
where the provision of the Subversive Activities Control Act of 1950
requiring the Communist Party of the United States to register was
sustained, the opinion of Justice Frankfurter for the Court, speaking
for a five-man majority, did indicate adherence to the Cummings
principle.  Had the American Communist Party been outlawed, the
outcome certainly would have been different.  Thus:  "The Act is not
a bill of attainder.  It attaches not to specified organizations but to
described activities in which an organization may or may not
engage.  The singling out of an individual for legislatively prescribed
punishment constitutes an attainder whether the individual is called
by name or described in terms of conduct which, because it is past
conduct, operates only as a designation of particular persons.  * * *
The Subversive Activities Control Act is not of that kind.  It requires
the registration only of organizations which, after the date of the Act,
are found to be under the direction, domination, or control of certain
foreign powers and to operate primarily to advance certain
objectives.  This finding must be made after full administrative
hearing, subject to judicial review which opens the record for the
reviewing court's determination whether the administrative findings
as to fact are supported by the preponderance of the evidence. 
Present activity constitutes an operative element to which the statute
attaches legal consequences, not merely a point of reference for the
ascertainment of particular persons ineluctably designated by the
The teaching of the above cases, which I find highly persuasive
considering what appeared to be in the minds of the framers of the
1934 Constitutional Convention yields for me the conclusion that the
Anti-Subversion Act falls within the ban of the bill of attainder
clause.  It should be noted that three subsequent cases upholding the
Cummings and Garland doctrine were likewise cited in the opinion
of the Court.  The interpretation accorded to them by my brethren is,
of course, different but I am unable to go along with them especially
in the light of the categorical language appearing in Lovett.  This is
not to lose sight of the qualification that for them could deprive such
opinion of the Court:  "Indeed, were the Anti-Subversion Act a bill
of attainder it would be totally unnecessary to charge communists in
court, as the law alone, without more, would suffice to secure their
conviction and punishment.  But the fact is that their guilt still has to
be judicially established.  The Government has yet to prove at the
trial that the accused joined the Party knowingly, willfully and by
overt acts, and that they joined the Party knowing its subversive
character and with specific intent to further its objective, i.e.,  to
overthrow the existing Government by force, deceit, and other illegal
means and place it under the control and domination of a foreign
power.[20] While not implausible, I find difficulty in yielding
acceptance.  In Cummings, there was a criminal prosecution of the
Catholic priest who refused to take the loyalty oath.  Again in
Brown, there was an indictment of the labor leader who, judging by
his membership in the Communist Party, did transgress the statutory
provision subsequently found offensive to the bill of attainder
clause.  If the construction I would place on the oft-repeated
pronouncement of the American Supreme Court is correct, then the
mere fact that a criminal case would have to be instituted would not
save the statute.  It does seem clear to me that from the very title of
the Anti-Subversion Act, "to outlaw the Communist Party of the
Philippines and similar associations," not to mention other specific
provisions, the taint of invalidity is quite marked.  Hence, my
inability to concur in the judgment reached as the statute not
suffering from any fatal infirmity in view of the Constitutional
prohibition against bills of attainder.
3. This brings me to the question of the alleged repugnancy of the
Anti-Subversion Act to the intellectual liberty safeguarded by the
Constitution in terms of the free speech and free association
guarantees.[21] It is to be admitted that at the time of the enactment of
Republic Act No. 1700, the threat that Communism, the Russian
brand then, did pose was a painful reality for Congressional leaders
and the then President.  Its shadow fell squarely across the lives of
all Subversion then could neither be denied nor disparaged.  There
was, in the expert opinion of those conversant with such matters, a
danger to our national existence of no mean character.  Nonetheless,
the remedies to ward off such menace must not be repugnant to our
Constitution.  We are legally precluded from acting in any other
way.  The apprehension justly felt is no warrant for throwing to the
discard fundamental guarantees.  Vigilant we had to be, but not at the
expense of constitutional ideals.
One of them, certainly highly-prized of the utmost significance, is
the right to dissent.  One can differ, even object; one can express
dissatisfaction with things as they are.  There are times when one not
only can but must.  Such dissent can take the form of the most
critical and the most disparaging remarks.  They may give offense to
those in authority, to those who wield power and influence. 
Nevertheless, they are entitled to constitutional protection.  Insofar as
the content of such dissent is concerned, the limits are hardly
discernible.  It cannot be confined to trivial matters or to such as are
devoid of too much significance.  It can reach the heart of things.  fundamental personal liberties when the end can be more narrowly
Such dissent may, for those not so adventurous in the realm of ideas,
possess a subversive tinge.  Even those who oppose a democratic
form of government cannot be silenced.  This is true especially in
centers of learning where scholars competent in their line may, as a
result of their studies, assert that a future is bleak for the system of
government now favored by Western democracies.  There may be
doubts entertained by some as to the lawfulness of their exercising
this right to dissent to the point of advocacy of such a drastic
change.  Any citizen may do so without fear that thereby he incurs
the risk of a penal sanction.  That is merely to affirm the truth of this
ringing declaration from Jefferson: "If there be any among us who
would wish to dissolve this union or to change its republican form,
let them stand undisturbed as monuments of the safety with which
error of opinion may be tolerated where reason is left free to combat
it."[22] As was so well put by the philosopher, Sidney Hook: 
"Without holding the right to the expression of heresy at any time
and place to be absolute — for even the right to non-heretical speech
cannot be absolute — it still seems wise to tolerate the expression
even of Communist, fascist and other heresies, lest in outlawing
theim we include other kinds of heresies, and deprive ourselves of
the opportunity to acquire possible sounder ideas than our own." [23]
The line is to be drawn, however, where the words amount to an
incitement to commit the crime of sedition or rebellion.  The stage
has been reached, to follow the formulation of Cardozo, where
thought merges into action.  Thus is loyalty shown to the freedom of
speech or press ordained by the Constitution.  It does not bar the
expression of views affecting the very life of the state, even if
opposed to its fundamental presuppositions.  It allows, if it does not
require as a matter of fact, that unorthodox ideas be freely ventilated
and fully heard.  Dissent is not disloyalty.
Such an approach is reinforced by the well-settled constitutional
principle "that even though the governmental purposes be legitimate
and substantial, they cannot be pursued by means that broadly stifle
achieved.  For precision of regulation is the touchstone in an area so
closely related to our most precious freedoms."[24]  This is so for "a
governmental purpose to control or prevent activities constitutionally
subject to state regulation may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected
freedoms."[25]  It is indispensable then that "an overbreadth" in the
applicability of the statute be avoided.  If such be the case, then the
line dividing the valid from the constitutionally infirm has been
crossed.  That for me is the conclusion to be drawn from the wording
of the Anti-Subversion Act.
There is to my mind support for the stand I take in the dissent of
Justice Black in the Communist Party case discussed above.  What is
to be kept in view is that a legislative measure certainly less drastic
in its treatment of the admittedly serious communist problem was
found in the opinion of this noted jurist offensive to the First
Amendment of the American Constitution safeguarding free speech.
Thus: “If there is one thing certain about the First Amendment it is
that this Amendment was designed to guarantee the freest
interchange of ideas about all public matters and that, of course,
means the interchange of all ideas, however such ideas may be
viewed in other countries and whatever change in the existing
structure of government it may be hoped that these ideas will bring
about.  Now, when this country is trying to spread the high ideals of
democracy all over the world – ideals that are revolutionary in many
countries – seems to be a particularly inappropriate time to stifle
First Amendment freedoms in this country.  The same arguments that
are used to justify the outlawry of the ideas of democracy in other
countries."[26]  Further he stated:  "I believe with the Framers of the
First Amendment that the internal security of a nation like ours does
not and cannot be made to depend upon the use of force by
Government to make all the beliefs and opinions of the people fit
into a common mold on any single subject.  Such enforced
conformity of thought would tend only to deprive our people of the
bold spirit of adventure and progress which has brought this Nation
to its present greatness.  The creation of public opinion by groups,
organizations, societies, clubs, and parties has been and is a
necessary part of our democratic society.  Such groups, like the Sons
of Liberty and the American Corresponding Societies, played a large
part in creating sentiment in this country that led the people of the
Colonies to want a nation of their own.  The Father of the
Constitution — James Madison — said, in speaking of the Sedition
Act aimed at crushing the Jefferson Party, that had that law been in
effect during the period before the Revolution, the United Sates
might well have continued to be 'miserable colonies, groaning under
a foreign yoke.' In my judgment, this country's internal security can
better be served by depending upon the affection of the people than
by attempting to instill them with fear and dread of the power of
Government.  The Communist Party has never been more than a
small group in this country.  And its numbers had been dwindling
even before the Government began its campaign to destroy the Party
by force of law.  This was because a vast majority of the American
people were against the Party's policies and overwhelmingly rejected
its candidates year after year.  That is the true American way of
securing this Nation against dangerous ideas.  Of course that is not
the way to protect the Nation against actions  of violence and
treason.  The Founders drew a distinction in our Constitution which
we would be wise to follow.  They gave the Government the fullest
power to prosecute overt actions in violation of valid laws but
withheld any power to punish people for nothing more than
advocacy of their views."[27]
With the sentiments thus expressed uppermost in my mind and
congenial to my way of thinking, I cannot share the conclusion
reached by my brethren as to the Anti-Subversion Act successfully
meeting the test of validity on free speech and freedom of association
grounds.
4.  It could be that this approach to the constitutional questions
involved arises from an appraisal of the challenged statute which for
me is susceptible of an interpretation that it does represent a defeatist
attitude on the part of those of us, who are devotees at the shrine of a
liberal-democratic state.  That certainly could not have been the
thought of its framers; nonetheless, such an assumption is not devoid
of plausibility for why resort to this extreme measure susceptible as Castro for the Court sustaining the validity of the Anti-Subversion
it is to what apparently are not unfounded attacks on constitutional Act.
grounds?  Is this not to ignore what previously was accepted as an
obvious truth, namely that the light of liberalism sends its shaftes in
many directions?  It can illuminate, and it can win the hearts and
minds of men.  It is difficult for me to accept the view then that a  Rep. Act No. 1700 (1957).
[1]

resort to outlawry is indispensable, that suppression is the only

answer to what is an admitted evil.  There could have been a greater  According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill
[2]
exposure of the undesirability of the communist creed, its or attainder shall be enacted."
contradictions and arbitrariness, its lack of fealty to reason, its
inculcation of disloyalty, and its subservience to centralized dictation
 According to Art. III, Sec. 1, par. 8: "No law shall be passed
[3]
that brooks no opposition.  It is thus, in a realistic sense, a
abridging the freedom of speech, or of the press, or the right of the
manifestation of the fear of free thought and the will to suppress it. 
people peaceably to assemble and petition the Government for
Far better, of course, is the propaganda of the deed.  What the
redress of grievances."
communists promise, this government can fulfill.  It is up to it then to
take remedial measures to alleviate the condition of our countrymen
whose lives are in a condition of destitution and misery.  It may not  According to Art. III, Sec. 1, par. 4: "The liberty of abode and of
[4]

be able to change matters radically.  At least, it should take earnest changing the same within the limits prescribed by law shall not be
steps in that direction.  What is important for those at the bottom of impaired."
the economic pyramid is that they are not denied the opportunity for
a better life.  If they, or at least their children, cannot even look  Footnote 2, p. 74 of Opinion of the Court.
[5]

forward to that, then a constitutional regime is nothing but a mockery

and a tragic illusion.  Such a response, I am optimistic enough to  4 Wall. 277 (1867).
[6]

believe, has the merit of thinning, if not completely eliminating, the

embattled ranks and outposts of ignorance, fanaticism and error.   4 Wall. 333 (1867).
[7]

That for me would be more in accordance with the basic proposition

of our polity.  This is not therefore to preach a doctrine of abject  Cf. United States vs. Lovett, 328 US 303 (1946).
[8]

surrender to the forces apparently bent on the adoption of a way of

life so totally opposed to the deeply felt traditions of our people.   4 Wall. 277 (1867).
[9]

This is, for me at least, an affirmation of the vitality of the

democratic creed, with an expression of regret that it could not have [10]
 Ibid, 323, 325.
been more impressively set forth in language worthy of the subject.
[11]
 4 Wall. 333 (1867).
It is in the light of the views above expressed that I find myself
unable to yield concurrence to the ably-written opinion of Justice [12]
 Ibid, 377-378.
  328 US 303.
[13]
 Communist Party vs. Subversive Activities Control Board, 367
[26]

US 1, 148.
 Ibid, 315-316.
[14]

 Ibid, 167-168.
[27]

 381 US 437.
[15]

 Ibid, 442.
[16]

Batas.org 
 Ibid, 449-450.
[17]

 367 US 1 (1961).
[18]

 Ibid, 86-87.
[19]

 Opinion of the Court, p. 15.

[20]

 According to Art. Ill, Sec. 1, par. 6: "The right to form associa-

[21]

tions or societies for purposes not contrary to law shall not be

abridged." Paragraph 8 of this section reads as follows: "No law shall
be passed abridging the freedom of speech, or of the press, or the
right of the people peaceably to assemble and petition the
Government for redress of grievances."

 Jefferson's First Inaugural Address, March 4, 1801, in Padover,

[22]

ed., The Complete Jefferson, 385 (1943).

 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).

[23]

 Gonzalez vs.  Commission on Elections, 27 SCRA 835, 871

[24]

(1969) citing Shelton vs. Tucker, 364 US 479 (1960) and NAACP
vs. Button, 371 US 415 (1963).

 NAACP vs. Alabama, 377 US 288 (1964).

[25]
 Supreme Court of the Philippines
335 Phil. 343 
EN BANC
G.R. No. 117472, February 07, 1997
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS.LEO ECHEGARAY Y PILO, ACCUSED-APPELLANT. 
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case
affirming the conviction of the accused-appellant for the crime of
raping his ten-year old daughter.  The crime having been committed
sometime in April, 1994, during which time Republic Act (R.A.) No.
7659, commonly known as the Death Penalty Law, was already in
effect, accused-appellant was inevitably meted out the supreme
penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim's
grandmother that precipitated the filing of the alleged false
accusation of rape against the accused.  We find no substantial
arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense
counsel, Atty. Julian R. Vitug, and retained the services of the Anti-
Death Penalty Task Force of the Free Legal Assistance Group of the
Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-
appellant.  The motion raises the following grounds for the reversal
of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the
pardon by the offended party and her mother before the filing of the
complaint acted as a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of
the offense in the Complaint and throughout trial prevented the
accused-appellant from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable
doubt.
[4] The Honorable Court erred in finding that the accused-appellant
was the father or stepfather of the complainant and in affirming the
sentence of death against him on this basis.
[5] The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
[6] The accused-appellant was denied his constitutional right to
effective assistance of counsel and to due process, due to the
incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is
unconstitutional per se:
a. For crimes where no death results from the offense, the death
penalty is a severe and excessive penalty in violation of Article III,
Sec. 19 ( I ) of the 1987 Constitution.
b. The death penalty is cruel and unusual punishment in violation of
Article III, Sec. 11 of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3)
main issues: (1) mixed factual and legal matters relating to the trial
proceedings and findings; (2) alleged incompetence of accused-
appellant's former counsel; and (3) purely legal question of the
constitutionality of R.A. No. 7659.
I.
It is a rudimentary principle of law that matters neither alleged in the
pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court. 
Moreover, as we have stated in our Resolution in Manila Bay Club
Corporation v. Court of Appeals:[1]
"If well-recognized jurisprudence precludes raising an issue only for
the first time on appeal proper, with more reason should such issue
be disallowed or disregarded when initially raised only in a motion
for reconsideration of the decision of the appellate court."
It is to be remembered that during the proceedings of the rape case
against the accused-appellant before the sala of then presiding Judge
xxx, the defense attempted to prove that:
a)  the rape case was motivated by greed, hence, a mere concoction
of the alleged victim's maternal grandmother;
b)  the accused is not the real father of the complainant;
c)  the size of the penis of the accused cannot have possibly
penetrated the alleged victim's private part; and
d)  the accused was in xxx during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic
review, the accused-appellant reiterated as grounds for exculpation:
a)  the ill-motive of the victim's maternal grandmother in prompting
her grandchild to file the rape case;
b)  the defense of denial relative to the size of his penis which could
not have caused the healed hymenal lacerations of the victim; and
c)  the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of
the accused-appellant reveals that in their messianic appeal for a
reversal of our judgment of conviction, we are asked to consider for
the first time, by way of a Supplemental Motion for Reconsideration,
the following matters:
a)  the affidavit of desistance written by the victim which acted as a
bar to the criminal prosecution for rape against the accused-
appellant;
b)  the vagueness attributed to the date of the commission of the
offense in the Complaint which deprived the accused-appellant from
adequately defending himself;

c)  the failure of this Court to clearly establish the qualifying
circumstance that placed the accused-appellant within the coverage
of the Death Penalty Law;
d)  the denial of due process and the manifest bias exhibited by the
trial court during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that We can tackle relates
to the Affidavit of Desistance which touches on the lack of
jurisdiction of the trial court to have proceeded with the prosecution
of the accused-appellant considering that the issue of jurisdiction
over the subject matter may be raised at any time, even during
appeal.[2]
It must be stressed that during the trial proceedings of the rape case
against the accused-appellant, it appeared that despite the admission
made by the victim herself in open court that she had signed an
Affidavit of Desistance, she, nevertheless, "strongly pointed out that
she is not withdrawing the charge against the accused because the
latter might do the same sexual assaults to other women." [3] Thus,
this is one occasion where an affidavit of desistance must be
regarded with disfavor inasmuch as the victim, in her tender age,
manifested in court that she was pursuing the rape charges against
the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which
is also cited by the accused-appellant, an affidavit of desistance is
merely an additional ground to buttress the accused's defenses, not
the sole consideration that can result in acquittal.  There must be
other circumstances which, when coupled with the retraction or
desistance, create doubts as to the truth of the testimony given by the
witnesses at the trial and accepted by the judge." [5]
In the case at bar, all that the accused-appellant offered as defenses
mainly consisted of denial and alibi which cannot outweigh the
positive identification and convincing testimonies given by the
prosecution.  Hence, the affidavit of desistance, which the victim
herself intended to disregard as earlier discussed, must have no
bearing on the criminal prosecution against the accused-appellant,
particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or
mistakes of his counsel.[6] One of the recognized exceptions to this
rule is gross incompetency in a way that the defendant is highly
prejudiced and prevented, in effect, from having his day in court to
defend himself.[7]
In the instant case, we believe that the former counsel of the accused-
appellant to whom the FLAG lawyers now impute incompetency had
amply exercised the required ordinary diligence or that reasonable
decree of care and skill expected of him relative to his client's
defense.  As the rape case was being tried on the merits, Atty. Vitug,
from the time he was assigned to handle the case, dutifully attended
the hearings thereof.  Moreover, he had seasonably submitted the
Accused-Appellant's Brief and the Motion for Reconsideration of our
June 25, 1996 Decision with extensive discussion in support of his
line of defense.  There is no indication of gross incompetency that
could have resulted from a failure to present any argument or any
witness to defend his client.  Neither has he acted haphazardly in the
preparation of his case against the prosecution evidence.  The main
reason for his failure to exculpate his client, the accused-appellant, is
the overwhelming evidence of the prosecution.  The alleged errors
committed by the previous counsel as enumerated by the new
counsel could not have overturned the judgment of conviction
against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death
as punishment for violation of law or custom, religious or secular, is
an ancient practice.  We do know that our forefathers killed to
avenge themselves and their kin and that initially, the criminal law
was used to compensate for a wrong done to a private party or his
family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past barbarity
and the institutionalization of state power under the rule of law.  "The penalty complained of is neither cruel, unjust nor excessive.  In
Today every man or woman is both an individual person with
inherent human rights recognized and protected by the state and a
citizen with the duty to serve the common weal and defend and
preserve society.
One of the indispensable powers of the state is the power to secure
society against threatened and actual evil.  Pursuant to this, the
legislative arm of government enacts criminal laws that define and
punish illegal acts that may be committed by its own subjects, the
executive agencies enforce these laws, and the judiciary tries and
sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating
on the causes of criminal behavior and the purposes of criminal
punishment, our criminal laws have been perceived as relatively
stable and functional since the enforcement of the Revised Penal
Code on January 1, 1932, this notwithstanding occasional opposition
to the death penalty provisions therein.  The Revised Penal Code, as
it was originally promulgated, provided for the death penalty in
specified crimes under specific circumstances.  As early as 1886,
though, capital punishment had entered our legal system through the
old Penal Code, which was a modified version of the Spanish Penal
Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a cruel,
unjust, excessive or unusual punishment in violation of the
constitutional proscription against cruel and unusual punishments. 
We unchangingly answered this question in the negative in the cases
of Harden v. Director of Prison,[8]People v. Limaco,[9] People v.
Camano,[10] People v. Puda[11] and People v. Marcos,[12] In Harden,
we ruled:
Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court
said that 'punishments are cruel when they involve torture or a
lingering death, but the punishment of death is not cruel, within the
meaning of that word as used in the constitution.  It implies there
something inhuman and barbarous, something more than the mere
extinguishment of life.'"[13]
Consequently, we have time and again emphasized that our courts
are not the fora for a protracted debate on the morality or propriety of
the death sentence where the law itself provides therefor in specific
and well-defined criminal acts.  Thus we had ruled in the 1951 case
of Limaco that:
"x x x there are quite a number of people who honestly believe that
the supreme penalty is either morally wrong or unwise or
ineffective.  However, as long as that penalty remains in the statute
books, and as long as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to respect and apply
the law regardless of their private opinions,"[14]
and this we have reiterated in the 1995 case of People v. Veneracion.
[15]
Under the Revised Penal Code, death is the penalty for the crimes of
treason, correspondence with the enemy during times of war,
qualified piracy, parricide, murder, infanticide, kidnapping, rape with
homicide or with the use of deadly weapon or by two or more
persons resulting in insanity, robbery with homicide, and arson
resulting in death.  The list of capital offenses lengthened as the
legislature responded to the emergencies of the times.  In 1941,
Commonwealth Act (C.A.) No. 616 added espionage to the list.  In
the 1950s, at the height of the Huk rebellion, the government enacted
Republic Act (R.A.) No. 1700, otherwise known as the Anti-
Subversion Law, which carried the death penalty for leaders of the
rebellion.  From 1971 to 1972, more capital offenses were created by
more laws, among them, the Anti-Hijacking Law, the Dangerous
Drugs Act, and the Anti-Carnapping Law. During martial law,
Presidential Decree (P.D.) No. 1866 was enacted penalizing with
death, among others, crimes involving homicide committed with an
unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos
regime and led to the nullification of the 1973 Constitution, a
Constitutional Commission was convened following appointments
thereto by Corazon Aquino who was catapulted to power by the
people.
Tasked with formulating a charter that echoes the new found
freedom of a rejuvenated people, the Constitutional Commissioners
grouped themselves into working committees among which is the
Bill of Rights Committee with Jose B. Laurel, Jr. As Chairman and
Father Joaquin G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the
proposed bill of rights to the rest of the commission.  What is now
Article III, Section 19 (1) of the 1987 Constitution was first
denominated as Section 22 and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment, or the death penalty inflicted.  Death penalty
already imposed shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result
of a consensus among the members of the Bill of Rights Committee
that the death penalty should be abolished.  Having agreed to abolish
the death penalty, they proceeded to deliberate on how the abolition
was to be done -- whether the abolition should be done by the
Constitution or by the legislature -- and the majority voted for a
constitutional abolition of the death penalty.  Father Bernas
explained:
"x x x [T]here was a division in the Committee not on whether the
death penalty should be abolished or not, but rather on whether the
abolition should be done by the Constitution -- in which case it
cannot be restored by the legislature -- or left to the legislature.  The
majority voted for the constitutional abolition of the death penalty. 
And the reason is that capital punishment is inhuman for the convict
and his family who are traumatized by the waiting, even if it is never
carried out.  There is no evidence that the death penalty deterred
deadly criminals, hence, life should not be destroyed just in the hope
that other lives might be saved.  Assuming mastery over the life of
another man is just too presumptuous for any man.  The fact that the
death penalty as an institution has been there from time immemorial
should not deter us from reviewing it.  Human life is more valuable
than an institution intended precisely to serve human life.  So,
basically, this is the summary of the reasons which were presented in
support of the constitutional abolition of the death penalty". [16]
The original wording of Article III, Section 19 (1), however, did not
survive the debate that it instigated.  Commissioner Napoleon G.
Rama first pointed out that "never in our history has there been a
higher incidence of crime" and that "criminality was at its zenith
during the last decade".[17] Ultimately, the dissent defined itself to an
unwillingness to absolutely excise the death penalty from our legal
system and leave society helpless in the face of a future upsurge of
crimes or other similar emergencies.  As Commissioner Rustico F.
de los Reyes, Jr. suggested, "although we abolish the death penalty in
the Constitution, we should afford some amount of flexibility to
future legislation,"[18] and his concern was amplified by the
interpellatory remarks of Commissioner Lugum L. Commissioner
and now Associate Justice Florenz Regalado, Commissioner
Crispino M. de Castro, Commissioner Ambrosio B. Padilla,
Commissioner Christian Monsod, Commissioner Francisco A.
Rodrigo, and Commissioner Ricardo Romulo.  Commissioner  for the common good.  I do not believe this Commission can a priori,
Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
"BISHOP BACANI.  x x x At present, they explicitly make it clear
that the church has never condemned the right of the state to inflict
capital punishment.
MR. PADILLA.  x x x So it is granted that the state is not deprived
of the right even from a moral standpoint of imposing or prescribing
capital punishment.
BISHOP BACANI.  Yes. What I am saying is that from the Catholic
point of view, that right of the state is not forbidden.
MR. PADILLA.  In fact  x x x we have to accept that the state has
the delegated authority from the Creator to impose the death penalty
under certain circumstances.
BISHOP BACANI.  The state has the delegation from God for it to
do what is needed for the sake of the common good, but the issue at
stake is whether or not under the present circumstances that will be
for the common good.
MR. PADILLA.  But the delegated power of the state cannot be
denied.
BISHOP BACANI.  Yes, the state can be delegated by God at a
particular stage in history, but it is not clear whether or not that
delegation is forever under all circumstances
MR. PADILLA.  So this matter should be left to the legislature to
determine, under certain specified conditions or circumstances,
whether the retention of the death penalty or its abolition would be
and as was remarked within a few days or even a month, determine a
positive provision in the Constitution that would prohibit even the
legislature to prescribe the death penalty for the most heinous crimes,
the most grievous offenses attended by many qualifying and
aggravating circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered
provision.  The move to add the phrase, "unless for compelling
reasons involving heinous crimes, the national assembly provides for
the death penalty," came from Commissioners Monsod, Jose E.
Suarez and de los Reyes.  Commissioner Rodrigo, however,
expressed reservations even as regards the proposed amendment.  He
said:
"x x x [T]he issue here is whether or not we should provide this
matter in the Constitution or leave it to the discretion of our
legislature.  Arguments pro and con have been given x x x.  But my
stand is, we should leave this to the discretion of the legislature.
The proposed amendment is halfhearted.  It is awkward because we
will, in effect, repeal by our Constitution a piece of legislation and
after repealing this piece of legislation, tell the legislature that we
have repealed the law and that the legislature can go ahead and enact
it again.  I think this is not worthy of a constitutional body like ours.  thereunder, were tremendous.
If we will leave the matter of the death penalty to the legislature, let
us leave it completely to the discretion of the legislature, but let us
not have this half-baked provision.  We have many provisions in the
Revised Penal Code imposing the death penalty.  We will now
revoke or repeal these pieces of legislation by means of the
Constitution, but at the same time say that it is up to the legislature to
impose this again.
x x x The temper and condition of the times change x x x and so we,
I think we should leave this matter to the legislature to enact statutes
depending on the changing needs of the times.  Let us entrust this
completely to the legislature composed of representatives elected by
the people.
I do not say that we are not competent.  But we have to admit the fact
that we are not elected by the people and if we are going to entrust
this to the legislature, let us not be half-baked nor half-hearted about
it.  Let us entrust it to the legislature 100 percent."[20]
Nonetheless, the proposed amendment was approved with twenty-
three (23) commissioners voting in favor of the amendment and
twelve (12) voting against it, followed by more revisions, hence the
present wording of Article III, Section 19 (1) of the 1987
Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted.  Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it.  Any death penalty already
imposed shall be reduced to reclusion perpetua."
The implications of the foregoing provision on the effectivity of the
death penalty provisions in the Revised Penal Code and certain
special criminal laws and the state of the scale of penalties
The immediate problem pertained to the applicable penalty for what
used to be capital crimes.  In People v. Gavarra,[21] we stated that "in
view of the abolition of the death penalty under Section 19, Article
III of the 1987 Constitution, the penalty that may be imposed for
murder isreclusion temporal in its maximum period to reclusion
perpetua"[22] thereby eliminating death as the original maximum
period.  The constitutional abolition of the death penalty, it seemed,
limited the penalty for murder to only the remaining periods, to wit,
the minimum and the medium, which we then, in People v.
Masangkay,[23] People v. Atencio[24] and People v. Intino[25] divided
into three new periods, to wit, the lower half of reclusion temporal
maximum as the minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetua as the maximum,
in keeping with the three-grade scheme under the Revised Penal
Code.  In People v. Munoz,[26] however, we reconsidered these
aforecited cases and after extended discussion, we concluded that the
doctrine announced therein did not reflect the intention of the
framers.  The crux of the issue was whether or not Article III,
Section 19 (1) absolutely abolished the death penalty, for if it did,
then, the aforementioned new three-grade penalty should replace the
old one where the death penalty constituted the maximum period. 
But if no total abolition can be read from said constitutional
provision and the death penalty is only suspended, it cannot as yet be
negated by the institution of a new three-grade penalty premised on
the total inexistence of the death penalty in our statute books.  We
thus ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution
abolished the death penalty and thereby limited the penalty for
murder to the remaining periods, to wit, the minimum and the
medium.  These should now be divided into three new periods in
keeping with the three-grade scheme intended by the legislature.  suspended the Rules of the Senate.
Those who disagree feel that Article III, Section 19 (1) merely
prohibits the imposition of the death penalty and has not, by reducing
it toreclusion perpetua, also correspondingly reduced the remaining
penalties. These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there
is really nothing therein which expressly declares the abolition of the
death penalty.  The provision merely says that the death penalty shall
not be imposed unless for compelling reasons involving heinous
crimes the Congress hereafter provides for it and, if already imposed,
shall be reduced to reclusion perpetua.  The language, while rather
awkward, is still plain enough".[27]
Nothing is more defining of the true content of Article III, Section 19
(1) of the 1987 Constitution than the form in which the legislature
took the initiative in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the
constitution, to enact legislation re-imposing the death penalty for
compelling reasons involving heinous crimes.  Pursuant to this
constitutional mandate, the Senate proceeded to a two-step process
consisting of:  first, the decision, as a matter of policy, to re-impose
the death penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for compelling reasons
involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments
for and against capital punishment, the Members of the Senate voted
on the policy issue of death penalty.  The vote was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body
Thereafter, upon motion of Senator Romulo, there being no
objection, the Chair directed that a nominal voting be conducted on
the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate
would vote on this policy question, Senator Romulo stated that a
vote of Yes would mean a vote in favor of death as a penalty to be
reincorporated in the scale of penalties as provided in the Revised
Penal Code, and a vote of No would be a vote against the
reincorporation of death penalty in the scale of penalties in the
Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would
first decide the question whether or not death penalty should be
reimposed, and thereafter, a seven-man committee would be formed
to draft the compromise bill in accordance with the result of the
voting.  If the Body decides in favor of the death penalty, the Chair
said that the committee would specify the crimes on which death
penalty would be imposed.  It affirmed that a vote of Yes in the
nominal voting would mean a vote in favor of death penalty on at
least one crime, and that certain refinements on how the penalty
would be imposed would be left to the discretion of the seven-man
committee.
xxx
INQUIRY OF SENATOR TAÑADA
In reply to Senator Tañada's query, the Chair affirmed that even if a
senator would vote 'yes' on the basic policy issue, he could still vote
'no' on the imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the
basic policy issue of whether or not the death penalty would be
included in the scale of penalties found in Article 27 of the Revised
Penal Code, so that if it is voted down, the Body would discontinue
discussing Senate Bill No. 891 pursuant to the Rules, but if
approved, a special committee, as agreed upon in the caucus, is
going to be appointed and whatever course it will take will depend
upon the mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death
as a penalty will be reincorporated in the scale of penalties provided
by the Revised Penal Code.  However, he pointed out that if the
Body decides in favor of death penalty, the Body would still have to
address two issues: 1) Is the crime for which the death penalty is
supposed to be imposed heinous pursuant to the constitutional
mandate? 2) And, if so, is there a compelling reason to impose the
death penalty for it?  The death penalty, he stressed, cannot be
imposed simply because the crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes
and no abstention, the Chair declared that the Senate has voted to re-
incorporate death as a penalty in the scale of penalties as provided in
the Revised Penal Code.  A nine-person committee was subsequently
created to draft the compromise bill pursuant to said vote.  The
mandate of the committee was to retain the death penalty, while the
main debate in the committee would be the determination of the
crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the
Special Committee on the Death Penalty, delivered his Sponsorship
Speech.  He began with an explanation as to why the Senate Bill No.
891 re-imposes the death penalty by amending the Revised Penal
Code and other special penal laws and includes provisions that do
not define or punish crimes but serve purposes allied to the
reimposition of the death penalty.  Senator Tolentino stated:
“x x x [W]hen the Senate approved the policy of reimposing the
death penalty on heinous crimes and delegated to the Special
Committee the work of drafting a bill, a compromise bill that would
be the subject for future deliberations of this Body, the Committee
had to consider that the death penalty was imposed originally in the
Revised Penal Code.
So, when the Constitution was approved in order to do away with the
death penalty, unless Congress should, for compelling reasons
reimpose that penalty on heinous crimes, it was obvious that it was
the Revised Penal Code that was affected by that provision of the
Constitution.  The death penalty, as provided in the Revised Penal
Code, would be considered as having been repealed -- all provisions
on the death penalty would be considered as having been repealed by
the Constitution, until Congress should, for compelling reasons,
reimpose such penalty on heinous crimes.  Therefore, it was not only
one article but many articles of the Revised Penal Code that were
actually affected by the Constitution.
And it is in consideration of this consequence of the constitutional
provision that our Special Committee had to consider the Revised
Penal Code itself in making this compromise bill or text of the bill.  followed the simpler method of keeping the definition of the crime as
That is why, in the proposed draft now under consideration which we
are sponsoring, the specific provisions of the Revised Penal Code are
actually either reenacted or amended or both.  Because by the effect
of the Constitution, some provisions were totally repealed, and they
had to be reenacted so that the provisions could be retained.  And
some of them had to be amended because the Committee thought
that amendments were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to
whether or not it would have been better if the Senate were to enact a
special law which merely defined and imposed the death penalty for
heinous crimes, Senator Tolentino explicated, thus:
"x x x  [T]hat may be a way presenting the bill.  But we must bear in
mind that the death penalty is imposed in the Revised Penal Code.  statistics showing that in the case of each and every crime in the
Therefore, when the Constitution abolished the death penalty, it
actually was amending the Revised Penal Code to such an extent that
the Constitution provides that where the death penalty has already
been imposed but not yet carried out, then the penalty shall
be reclusion perpetua, that is the penalty in the Revised Penal Code.
So we thought that it would be best to just amend the provisions of
the Revised Penal Code, restoring the death penalty for some crimes
that may be considered as heinous.  That is why the bill is in this
form amending the provisions of the Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole
trouble is, when a special bill is presented and we want to punish in
the special bill the case of murder, for instance, we will have to
reproduce the provisions of the Revised Penal Code on murder in
order to define the crime for which the death penalty shall be
imposed.  Or if we want to impose the death penalty in the case of
kidnapping which is punished in the Revised Penal Code, we will do
the same -- merely reproduce.  Why will we do that?  So we just
the same and merely adding some aggravating circumstances and
reimposing the death penalty in these offenses originally punished in
the Revised Penal Code."[30]
From March 17, 1993, when the death penalty bill was presented for
discussion until August 16, 1993, the Members of the Senate debated
on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who
kept prodding the sponsors of the bill to state the compelling reason
for each and every crime for which the supreme penalty of death was
sought.  Zeroing in on the statement in the preamble of the death
penalty bill that the same is warranted in the face of "the alarming
upsurge of [heinous] crimes", Senator Lina demanded for solid
death penalty bill, there was a significantly higher incidence of each
crime after the suspension of the death penalty on February 2, 1987
when the 1987 Constitution was ratified by the majority of the
Filipino people, than before such ratification.[31]Inasmuch as the re-
impositionists could not satisfy the abolitionists with sufficient
statistical data for the latter to accept the alarming upsurge of
heinous crimes as a compelling reason justifying the reimposition of
the death penalty, Senator Lina concluded that there were, in fact, no
compelling reasons therefor.  In the alternative, Senator Lina argued
that the compelling reason required by the constitution was that "the
State has done everything in its command so that it can be justified to
use an inhuman punishment called death penalty". [32] The problem,
Senator Lina emphasized, was that even the re-impositionists admit
that there were still numerous reforms in the criminal justice system
that may and must be put in place, and so clearly, the recourse to the
enactment of a death penalty bill was not in the nature of a last
resort, hence, unconstitutional in the absence of compelling reasons.  compelling reason for the death penalty.
As an initial reaction to Senator Lina's contentions, Senator
Tolentino explained that the statement in the preamble is a general
one and refers to all the crimes covered by the bill and not to specific
crimes.  He added that one crime may not have the same degree of
increase in incidence as the other crimes and that the public demand
to impose the death penalty is enough compelling reason. [33]
Equally fit to the task was Senator Wigberto Tañada to whom the
battle lines were clearly drawn.  He put to issue two things: first, the
definition of "heinous crimes" as provided for in the death penalty
bill; and second, the statement of compelling reasons for each and
every capital crime.  His interpellation of Senator Tolentino clearly
showed his objections to the bill:
"Senator Tañada.  x x x But what would make crimes heinous, Mr.
President?  Are crimes heinous by their nature or elements as they
are described in the bill or are crimes heinous because they are
punished by death, as bribery and malversation are proposed to be
punished in the bill?
Senator Tolentino.  They are heinous by their nature, Mr. President,
but that is not supposed to be the exclusive criterion.  The nature of
the offense is the most important element in considering it heinous
but, at the same time, we should consider the relation of the offense
to society in order to have a complete idea of the heinous nature of
these offenses.
In the case of malversation or bribery, for instance, these offenses by
themselves connected with the effect upon society and the
government have made them fall under the classification of heinous
crimes.  The compelling reason for imposing the death penalty is
when the offenses of malversation and bribery becomes so grave and
so serious as indicated in the substitute bill itself, then there is a
Senator Tañada.  With respect to the compelling reasons, Mr.
President, does the Gentleman believe that these compelling reasons,
which would call for the reimposition of the death penalty, should be
separately, distinctly and clearly stated for each crime so that it will
be very clear to one and all that not only are these crimes heinous but
also one can see the compelling reasons for the reimposition of the
death penalty therefor?
Senator Tolentino.  Mr. President, that matter was actually
considered by the Committee.  But the decision of the Committee
was to avoid stating the compelling reason for each and every
offense that is included in the substitute measure.  That is why in the
preamble, general statements were made to show these compelling
reasons.  And that, we believe, included in the bill, when converted
into law, would be sufficient notice as to what were considered
compelling reasons by the Congress, in providing the death penalty
for these different offenses.
If a matter like this is questioned before the Supreme Court, I would
suppose that with the preamble already in general terms, the
Supreme Court would feel that it was the sense of Congress that this
preamble would be applicable to each and every offense described or
punishable in the measure.
So we felt that it was not necessary to repeat these compelling
reasons for each and every offense.
Senator Tañada.  Mr. President, I am thinking about the
constitutional limitations upon the power of Congress to enact
criminal legislation, especially the provisions on the Bill of Rights,
particularly the one which says that no person shall be held to answer
for a criminal offense without due process of law.
Can we not say that under this provision, it is required that the
compelling reasons be so stated in the bill so that the bill, when it
becomes a law, will clearly define the acts and the omissions
punished as crimes?
Senator Tolentino.  Mr. President, I believe that in itself, as
substantive law, this is sufficient.  The question of whether there is
due process will more or less be a matter of procedure in the
compliance with the requirements of the Constitution with respect to
due process itself which is a separate matter from the substantive law
as to the definition and penalty for crimes.
Senator Tañada.  Under the Constitution, Mr. President, it appears
that the reimposition of the death penalty is subject to three
conditions and these are:
1. Congress should so provide such reimposition of the death
penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph 1, Section 13,
does the distinguished Gentleman not feel that Congress is bound to
state clearly the compelling reasons for the reimposition of the death
penalty for each crime, as well as the elements that make each of the
crimes heinous included in the bill?
Senator Tolentino.  Mr. President, that is a matter of opinion
already.  I believe that whether we state the compelling reasons or
not, whether we state why a certain offense is heinous, is not very
important.  If the question is raised in the Supreme Court, it is not
what we say in the bill that will be controlling but what the Supreme
Court will fell as a sufficient compelling reason or as to the heinous
nature whether the crime is heinous or not.  The accused can
certainly raise the matter of constitutionality but it will not go into
the matter of due process.  It will go into the very power of Congress
to enact a bill imposing the death penalty.  So that would be entirely
separate from the matter of due process." [34]
Senator Francisco Tatad, on his part, pointed out that the death
penalty bill violated our international commitment in support of the
worldwide abolition of capital punishment, the Philippines being a
signatory to the International Covenant on Civil and Political Rights
and its Second Optional Protocol.  Senator Ernesto Herrera clarified,
however, that in the United Nations, subject matters are submitted to
the different committees which vote on them for consideration in the
plenary session.  He stressed that unless approved in the plenary
session, a declaration would have no binding effect on signatory
countries.  In this respect, the Philippines cannot be deemed
irrevocably bound by said covenant and protocol considering that
these agreements have reached only the committee level. [35]
After the protracted debate, the Members of the Senate voted on
Senate Bill No. 891 on third reading.  With seventeen (17)
affirmative votes, four (4) negative votes, and one abstention, the
death penalty bill was approved on third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on
August 16, 1993 was a vindication of, the House of Representatives. 
The House had, in the Eight Congress, earlier approved on third
reading House Bill No. 295 on the restoration of the death penalty
for certain heinous crimes.  The House was in effect rebuffed by the
Senate when the Senate killed House Bill No. 295 along with other
bills coming from the House.  House Bill No. 295 was resurrected
during the Ninth Congress in the form of House Bill No. 62 which
was introduced by twenty one (21) Members of the House of
Representatives on October 27, 1992.  House Bill No. 62 was a
merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565,
1586, 2206, 3238, 3576 and 3632 authored by various Members of
the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of
Rizal ably essayed the constitutional vesting in Congress of the
power to re-impose the death penalty for compelling reasons
invoking heinous crimes as well as the nature of this constitutional
pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I
quote:
'Neither shall death penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress shall thereafter
provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes,
the Congress shall thereafter provide for it was introduced as an
amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable.  By this amendment,
the death penalty was not completely abolished by the 1987
Constitution.  Rather, it merely suspended the death penalty and gave
Congress the discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision,
Comm. Ricardo Romulo said, and I quote:
"'The people should have the final say on the subject, because, at
some future time, the people might want to restore death penalty
through initiative and referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages.  Therefore, it is
entirely possible in the future that circumstances may arise which we
should not preclude today.
xxx      xxx       xxx
I believe that [there] are enough compelling reasons that merit the
reimposition of the capital punishment.  The violent manner and the
viciousness in which crimes are now committed with alarming
regularity, show very clearly a patent disregard of the law and a
mockery of public peace and order.
In the public gallery section today are the relatives of the victims of
heinous crimes — the Hultmans, the Maguans, the Vizcondes, the
Castanoses, and many more, and they are all crying for justice.  We
ought to listen to them because their lives, their hopes, their dreams,
their future have fallen asunder by the cruel and vicious criminality
of a few who put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly
violent manner in which the same was committed or by the reason of
its inherent viciousness, shows a patent disregard and mockery of the
law, public peace and order, or public morals.  It is an offense whose
essential and inherent viciousness and atrocity are repugnant and
outrageous to a civilized society and hence, shock the moral self of a
people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two
lovely daughters, will stand in the people's memory for many long
years as the epitome of viciousness and atrocity that are repugnant to
civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young
business executive, was and still is an outrage that shocks the moral
self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-
old high school student who dreamt of becoming a commercial
model someday, at the hands of a crazed man was so repulsive, so
brutal that it offends the sensibilities of Christians and non-Christians
alike
The cold-blooded double murder of Cochise Bernabe and Beebom
Castanos, the lovely and promising couple from the University of the
Philippines, is eternally lodged in the recesses of our minds and still
makes our stomach turn in utter disgust.
xxx      xxx       xxx
The seriousness of the situation is such that if no radical action is
taken by this body in restoring death penalty as a positive response to
the overwhelming clamor of the people, then, as Professor Esteban
Bautista of the Philippine Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or
unable to impose upon criminal offenders the punishment they
deserve, there are sown the seeds of anarchy — of self-help, of
vigilante justice and lynch law.  The people will take the law upon
their hands and exact vengeance in the nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House
Bill No. 62.
As duly elected Representatives of our people, collectively, we ought
to listen to our constituents and heed their plea — a plea for life,
liberty and pursuit of their happiness under a regime of justice and
democracy, and without threat that their loves ones will be
kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely
on for justice.  A law that will exact retribution for the victims.  A
law that will deter future animalistic behavior of the criminal who
take their selfish interest over and above that of society.  A law that
will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all
that we hold dear and sacred, let us restore the death penalty." [36]
A studious comparison of the legislative proceedings in the Senate
and in the House of Representatives reveals that, while both
Chambers were not wanting of oppositors to the death penalty, the
Lower House seemed less quarrelsome about the form of the death
penalty bill as a special law specifying certain heinous crimes
without regard to the provisions of the Revised Penal Code and more
unified in the perception of what crimes are heinous and that the fact
of their very heinousness involves the compulsion and the imperative
to suppress, if not completely eradicate, their occurrence.  Be it the
foregoing general statement of Representative Sanchez or the
following details of the nature of the heinous crimes enumerated in
House Bill No. 62 by Representative Miguel L. Romero of Negros
Oriental, there was clearly, among the hundred or so re-
impositionists in the Lower House, no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty
not only for the importation, manufacture and sale of dangerous
drugs, but also for other heinous crimes such as reason; parricide;
murder; kidnapping; robbery; rape as defined by the Revised Penal
Code with or without additionally defined circumstances; plunder, as
defined in R.A. 7080; piracy, as defined under Section 2 of PD 532;
carnapping, as defined in Section 2 of RA 6539, when the owner,
driver or occupant is killed; hijacking, as defined in xxx RA 6235;
and arson resulting in the death of any occupants.
All these crimes have a common denominator which qualifies them
to the level of heinous crimes.  A heinous crime is one which, by
reason of its inherent or manifest wickedness, viciousness, atrocity or
perversity, is repugnant and outrageous to the common standards of
decency and morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance
to a government, committed by a person who owes allegiance to it
(U.S. v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation
of fidelity and obedience which individuals owe to the government
under which they live or to their sovereign in return for the
protection which they receive (52 Am Jur 797).
In kidnapping, the though alone of one's loved one being held against
his or her own will in some unidentified xxx house by a group of
scoundrels who are strangers is enough terrify and send shivers of
fear through the spine of any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson,
what is being punished by death is the fact that the perpetrator, at the
time of the commission of the crime, thinks nothing of the other
crime he commits and sees it merely as a form of self-amusement. 
When a homicide is committed by reason of the robbery, the culprits
are perceived as willing to take human life in exchange for money or
other personal property.
In the crime of rape, not only do we speak of the pain and agony of
the parents over the personal shock and suffering of their child but
the stigma of the traumatic and degrading incident which has
shattered the victim's life and permanently destroyed her reputation,
not to mention the ordeal of having to undergo the shameful
experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the
universal hostility of the perpetrators against their victims who are
passengers and complement of the vessel, and because of the fact
that, in the high seas, no one may be expected to be able to come to
the rescue of the helpless victims.  For the same reason, Mr. Speaker,
the crime of air piracy is punished due to the evil motive of the
hijackers in making unreasonable demands upon the sovereignty of
an entire nation or nations, coupled with the attendant circumstance
of subjecting the passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to
February 11, 1993. On February 11, 1993, the Members of the House
of Representatives overwhelmingly approved the death penalty bill
on second reading.
On February 23, 1993, after explaining their votes, the Members of
the House of Representatives cast their vote on House Bill No. 62
when it was up for consideration on third reading. [38] The results
were 123 votes in favor, 26 votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February
23, 1993 and of Senate Bill No. 891 on August 16, 1993, the
Bicameral Conference Committee convened to incorporate and
consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An
Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, as Amended,
Other Special Penal Laws, and for Other Purposes," took effect. [39]
Between December 31, 1993, when R.A. No. 7659 took effect, and
the present time, criminal offenders have been prosecuted under said
law, and one of them, herein accused-appellant, has been, pursuant to
said law, meted out the supreme penalty of death for raping his ten-
year old daughter.  Upon his conviction, his case was elevated to us
on automatic review.  On June 25, 1996, we affirmed his conviction
and the death sentence.
Now, accused-appellant comes to us in the heels of this court's
affirmation of his death sentence and raises for the first time the
issue of the constitutionality of R.A. 7659.  His thesis is two-fold: (1)
that the death penalty law is unconstitutional per se for having been
enacted in the absence of compelling reasons therefor; and (2) that
the death penalty for rape is a cruel, excessive and inhuman
punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-
appellant's view that Congress enacted R.A. No. 7659 without
complying with the twin requirements of compelling reasons and
heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A.
No. 7659 as unfurled in the beginning of this disquisition,
necessarily provide the context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in
Congress the power to re-impose the death penalty "for compelling
reasons involving heinous crimes".  This power is not subsumed in
the plenary legislative power of Congress, for it is subject to a clear
showing of "compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the
death penalty entails (1) that Congress define or describe what is
meant by heinous crimes; (2) that Congress specify and penalize by
death, only crimes that qualify as heinous in accordance with the
definition or description set in the death penalty bill and/or designate
crimes punishable by reclusion perpetua to death in which latter case,
death can only be imposed upon the attendance of circumstances
duly proven in court that characterize the crime to be heinous in
accordance with the definition or description set in the death penalty
bill; and (3) that Congress, in enacting this death penalty bill be
singularly motivated by "compelling reasons involving heinous
crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we
find the definition or description of heinous crimes.  Said clause
provides that
"x x x  the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of
their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered
society."
Justice Santiago Kapunan, in his dissenting opinion in People v.
Alicando, [40] traced the etymological root of the word "heinous" to
the Early Spartans' word, "haineus", meaning, hateful and
abominable, which, in turn, was from the Greek prefix "haton",
denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient
criterion of what is to be considered a heinous crime.  This criterion
is deliberately undetailed as to the circumstances of the victim, the
accused, place, time, the manner of commission of crime, its
proximate consequences and effects on the victim as well as on
society, to afford the sentencing authority sufficient leeway to
exercise his discretion in imposing the appropriate penalty in cases
where R.A. No. 7659 imposes not a mandatory penalty of death but
the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina
and Tañada grilled the sponsors of the bill as regards what they
perceived as a mere enumeration of capital crimes without a
specification of the elements that make them heinous.  They were
oblivious to the fact that there were two types of crimes in the death
penalty bill: first, there were crimes penalized by reclusion perpetua
to death; and second, there were crimes penalized by mandatory
capital punishment upon the attendance of certain specified
qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by
reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the
following four circumstances: (a) the victim was detained for more
than three days; (b) it was committed simulating public authority; (c)
serious physical injuries were inflicted on the victim or threats to kill
him were made; and (d) if the victim is a minor, except when the
accused is any of the parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings
or edifice; (b) a building where people usually gather; (c) a train,
ship or airplane for public use; (d) a building or factory in the service
of public utilities; (e) a building for the purpose of concealing or
destroying evidence Or a crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what is
burned, if the arson is perpetrated by two or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a) the rape
is committed with a deadly weapon; (b) the rape is committed by two
or more persons; and (c) the rape is attempted or frustrated and
committed with homicide (Sec. 11);
(10)   Plunder involving at least P50 million (Sec. 12);
(11)   Importation of prohibited drugs (Sec. 13);
(12)   Sale, administration, delivery, distribution, and transportation
of prohibited drugs (id.);
(13)   Maintenance of den, dive or resort for users of prohibited
drugs (id.);

(14)   Manufacture of prohibited drugs (id.);
(15)   Possession or use of prohibited drugs in certain specified
amounts (id.);
(16)   Cultivation of plants which are sources of prohibited drugs
(id.)
(17)   Importation of regulated drugs (Sec. 14);
(18)   Manufacture of regulated drugs (id.);
(19)   Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
(20)   Maintenance of den, dive, or resort for users of regulated drugs
(Sec. 15);
(21)   Possession or use of regulated drugs in specified amounts (Sec.
16);
(22)   Misappropriation, misapplication or failure to account
dangerous drugs confiscated by the arresting officer (Sec. 17);
(23)   Planting evidence of dangerous drugs in person or immediate
vicinity of another to implicate the latter (Sec. 19); and
(24)   Carnapping where the owner, driver or occupant of the
carnapped motor vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform
penalty for all of them being not mandatory death but the flexible
penalty of reclusion perpetua to death. In other words, it is
premature to demand for a specification of the heinous elements in
each of foregoing crimes because they are not anyway mandatorily
penalized with death.  The elements that call for the imposition of the
supreme penalty of death in these crimes, would only be relevant
when the trial court, given the prerogative to impose reclusion
perpetua, instead actually imposes the death penalty because it has,
in appreciating the evidence proffered before it, found the attendance
of certain circumstances in the manner by which the crime was
committed, or in the person of the accused on his own or in relation
to the victim, or in any other matter of significance to the
commission of the crime or its effects on the victim or on society,
which circumstances characterize the criminal acts as grievous,
odious, or hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous to the
common standards and norms of decency and morality in a just,
civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory penalty of
death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he
refrains from arresting or prosecuting an offender who has
committed a crime punishable by reclusion perpetua and/or death in
consideration of any offer, promise, gift or present, he shall suffer
the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he
shall suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in
the death of the victim or the victim is raped, tortured or subjected to
dehumanizing acts
"The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other
person, even if none of the circumstances above-mentioned were
present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or
is raped, or is subject to torture or dehumanizing acts, the maximum
penalty [of death] shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized
under this Article, death results, the mandatory penalty of death shall
be imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and
qualified
"When by reason or on the occasion of the rape, the victim has
become insane, the penalty shall be death.
xxx  xxx   xxx
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent or the victim.
2. when the victim is under the custody of the police or military
authorities.
3. when the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree of
consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law enforcement
agency.
7. when by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of
prohibited drugs where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be the
proximate cause of the death of victim thereof, the maximum penalty
[of death] herein provided shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the
contrary, the maximum of the penalty [of death] shall be imposed in
every case where a prohibited drug is administered, delivered or sold
to a minor who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a
person using the same in such den, dive or resort, the maximum
penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the
contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and
transportation of regulated drugs where the victim is a minor or the
victim dies
"Notwithstanding the provisions of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a regulated
drug involved in any offense under this Section be the proximate
cause of the death of a victim thereof, the maximum penalty [of
death] herein provided shall be imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the
contrary, the maximum penalty [of death] herein provided shall be
imposed in every case where a regulated drug is administered,
delivered or sold to a minor who is allowed to use the same in such
place.
Should a regulated drug be the proximate cause of death of a person
using the same in such den, dive or resort, the maximum penalty
herein provided shall be imposed on the maintainer notwithstanding
the provisions of Section 20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees
or officers including members of police agencies and armed forces
"The maximum penalties [of death] 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,
14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act
of 1972] shall be imposed, if those found guilty or any of the same
offenses are government officials, employees or officers including
members of police agencies and the armed forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with
the mandatory death penalty if convicted are government officials,
employees or officers
"Any such above government official, employee or officer who is
found guilty of 'planting' any dangerous drugs punished in Section s
3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of
Article III (of the Dangerous Drugs Act of 1972) in the person or in
the immediate vicinity of another as evidence to implicate the latter,
shall suffer the same penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in
its maximum [of death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated
crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another
for purposes of gain in the commission of any crime." (Sec. 23)

It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms.  There are crimes that
are, by their very nature, despicable, either because life was callously
taken or the victim is treated like an animal and utterly dehumanized
as to completely disrupt the normal course of his or her growth as a
human being.  The right of a person is not only to live but to live a
quality life, and this means that the rest of society is obligated to
respect his or her individual personality, the integrity and the sanctity
of his or her own physical body, and the value he or she puts in his or
her own spiritual, psychological, material and social preferences and
needs. Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death, and drug offenses involving
minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping
and serious illegal detention where the victim is detained for more
than three days or serious physical injuries were inflicted on the
victim or threats to kill him were made or the victim is a minor,
robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which
the state finds itself to be struggling to develop and provide for its
poor and underprivileged masses.  Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will
to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the
structures of society and psyche of the populace.  Terribly lacking
the money to provide even the most basic services to its people, any
form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and
in turn, the very survival of the people it governs over.  Viewed in
this context, no less heinous are the effects and repercussions of
crimes like qualified bribery, destructive arson resulting in death, and
drug offenses involving government officials, employees or officers,
that their perpetrators must not be allowed to cause further
destruction and damage to society.
We have no doubt, therefore, that insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified
crimes warranting the mandatory penalty of death.  As to the other
crimes in R.A. No. 7659 punished by reclusion perpetua to death,
they are admittingly no less abominable than those mandatorily
penalized by death.  The proper time to determine their heinousness
in contemplation of law, is when on automatic review, we are called
to pass on a death sentence involving crimes punishable by reclusion
perpetua to death under R.A. No. 7659, with the trial court meting
out the death sentence in exercise of judicial discretion.  This is not
to say, however, that the aggravating circumstances under the
Revised Penal Code need be additionally alleged as establishing the
heinousness of the crime for the trial court to validly impose the
death penalty in the crimes under R.A. No. 7659 which are punished
with the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the
provisions of the Revised Penal Code relating to aggravating
circumstances.  Secondly, R.A. No. 7659, while it specifies
circumstances that generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither amends nor
repeals the aggravating circumstances under the Revised Penal
Code.  Thus, construing R.A. No. 7659 in parimateria with the
Revised Penal Code, death may be imposed when (1) aggravating
circumstances attend the commission of the crime as to make
operative the provision of the Revised Penal Code regarding the
imposition of the maximum penalty; and (2) other circumstances
attend the commission of the crime which indubitably characterize
the same as heinous in contemplation of R.A. No. 7659 that justify
the imposition of the death, albeit the imposable penalty is reclusion
perpetua to death.  Without difficulty, we understand the rationale
for the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as
heinous.  Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that there is no
telling the evil that man is capable of.  The legislature cannot and
need not foresee and inscribe in law each and every loathsome act
man is capable of.  It is sufficient thus that R.A. 7659 provides the
test and yardstick for the determination of the legal situation
warranting the imposition of the supreme penalty of death.  Needless
to say, we are not unaware of the ever existing danger of abuse of
discretion on the part of the trial court in meting out the death
sentence.  Precisely to reduce to nil the possibility of executing an
innocent man or one criminal but not heinously criminal, R.A. 7659
is replete with both procedural and substantive safeguards that ensure
only the correct application of the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional
requirement that the death penalty be re-imposed for compelling
reasons involving heinous crimes, we note that the main objection to
the death penalty bill revolved around the persistent demand of the
abolitionists for a statement of the reason in each and every heinous
crime and statistical proof the such compelling reason actually exists.
We believe, however, that the elements of heinousness and
compulsion are inseparable and are, in fact, interspersed with each
other. Because the subject crimes are either so revolting and
debasing as to violate the most minimum of the human standards of
decency or its effects, repercussions, implications and consequences
so destructive, destabilizing, debilitating, or aggravating in the
context of our socio-political and economic agenda as a developing
nation, these crimes must be frustrated, curtailed and altogether
eradicated.  There can be no ifs or buts in the face of evil, and we
cannot afford to wait until we rub elbows with it before grasping it
by the ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be
pursued and implemented before the death penalty be re-imposed in
case such reforms prove unsuccessful.  They claimed that the only
compelling reason contemplated of by the constitution is that nothing
else but the death penalty is left for the government to resort to that
could check the chaos and the destruction that is being caused by
unbridled criminality.  Three of our colleagues, are of the opinion
that the compelling reason required by the constitution is that there
occurred a dramatic and significant change in the socio-cultural
milieu after the suspension of the death penalty on February 2, 1987
such as an unprecedented rise in the incidence of criminality. Such
are, however, interpretations only of the phrase "compelling reasons"
but not of the conjunctive phrase "compelling reasons involving
heinous crimes".  The imposition of the requirement that there be a
rise in the incidence of criminality because of the suspension of the
death penalty, moreover, is an unfair and misplaced demand, for
what it amounts to, in fact, is a requirement that the death penalty
first proves itself to be a truly deterrent factor in criminal behavior. 
If there was a dramatically higher incidence of criminality during the
time that the death penalty was suspended, that would have proven
that the death penalty was indeed a deterrent during the years before
its suspension.  Suffice it to say that the constitution in the first place
did not require that the death penalty be first proven to be a deterrent;
what it requires is that there be compelling reasons involving heinous
crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may re-
impose the death penalty.  Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid, a positive
manifestation in the form of a higher incidence of crime should first
be perceived and statistically proven following the suspension of the
death penalty.  Neither does the said provision require that the death
penalty be resorted to as a last recourse when all other criminal
reforms have failed to abate criminality in society.  It is immaterial
and irrelevant that R.A. No. 7659 cites that there has been an
"alarming upsurge of such crimes", for the same was never intended
by said law to be the yardstick to determine the existence of
compelling reasons involving heinous crimes.  Fittingly, thus, what
R.A. No. 7659 states is that "the Congress, in the interest of justice,
public order and rule of law, and the need to rationalize and
harmonize the penal sanctions for heinous crimes, finds compelling
reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for
attacking the constitutionality of R.A. No. 7659, i.e., that the death
penalty imposed in rape is violative of the constitutional proscription
against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States
(U.S.) Supreme Court in Furman v. Georgia.[41]To state, however,
that the U.S. Supreme Court, in Furman, categorically ruled that the
death penalty is a cruel, degrading or inhuman punishment, is
misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the
arbitrariness pervading the procedures by which the death penalty
was imposed on the accused by the sentencing jury.  Thus, the
defense theory in Furman centered not so much on the nature of the
death penalty as a criminal sanction but on the discrimination against
the black accused who is meted out the death penalty by a white jury
that is given the unconditional discretion to determine whether or not
to impose the death penalty.  In fact, the long road of the American
abolitionist movement leading to the landmark case of Furman was
trekked by American civil rights advocates zealously fighting against
racial discrimination.  Thus, the U.S. Supreme Court stated in
Furman:
"We cannot say from facts disclosed in these records that these
defendants were sentenced to death because they were black.  Yet
our task is not restricted to an effort to divine what motives impelled
these death penalties.  Rather, we deal with a system of law and of
justice that leaves to the uncontrolled discretion of judges or juries
the determination whether defendants committing these crimes
should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no
permissible 'caste' aspect of law enforcement.  Yet we know that the
discretion of judges and juries in imposing the death penalty enables
the penalty to be selectively applied, feeding prejudices against the
accused if he is poor and despised x x x.
xxx
Thus, these discretionary statutes are unconstitutional in their
operation.  They are pregnant with discrimination and discrimination
is an ingredient not compatible with the idea of equal protection of
the laws that is implicit in the ban on 'cruel and unusual'
punishments."
Furman, thus, did not outlaw the death penalty because it was cruel
and unusual per se.  While the U.S. Supreme Court nullified all
discretionary death penalty statutes in Furman, it did so because the
discretion which these statutes vested in the trial judges and
sentencing juries was uncontrolled and without any parameters,
guidelines, or standards intended to lessen, if not altogether
eliminate, the intervention of personal biases, prejudices and
discriminatory acts on the part of the trial judges and sentencing
juries.
Consequently, in the aftermath of Furman, when most of the states
re-enacted their death penalty statutes now bearing the procedural
checks that were required by the U.S. Supreme Court, said court
affirmed the constitutionality of the new death penalty statutes in the
cases of Gregg v. Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.
[44]
Next, accused-appellant asseverates that the death penalty is a cruel,
inhuman or degrading punishment for the crime of rape mainly
because the latter, unlike murder, does not involve the taking of life.  authorized death for rape chose to include rape among capital
In support of his contention, accused-appellant largely relies on the
ruling of the U.S. Supreme Court in Coker v. Georgia.[45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x  It is now settled that the death penalty is not invariably cruel
and unusual punishment within the meaning of the Eighth
Amendment; it is not inherently barbaric or an unacceptable mode of
punishment for crime; neither is it always disproportionate to the
crime for which it is imposed.  It is also established that imposing
capital punishment, at least for murder, in accordance with the
procedures provided under the Georgia statutes saves the sentence
from the infirmities which led the Court to invalidate the prior
Georgia capital punishment statute in Furman v. Georgia x x x.
xxx
In Gregg [v. Georgia] x x x the Court's judgment was that the death
penalty for deliberate murder was neither the purposeless imposition
of severe punishment nor a punishment grossly disproportionate to
the crime.  But the Court reserved the question of the
constitutionality of the death penalty when imposed for other crimes.
xxx
That question, with respect to rape of an adult woman, is now before
us.
xxx
x x x  [T]he public judgment with respect to rape, as reflected in the
statutes providing the punishment for that crime, has been
dramatically different. In reviving death penalty laws to satisfy
Furman's mandate, none of the States that had not previously
felonies.  Of the 16 States in which rape had been a capital offense,
only three provided the death penalty for rape of an adult woman in
their revised statutes -- Georgia, North Carolina. and Louisiana.  In
the latter two States, the death penalty was mandatory for those
found guilty, and those laws were invalidated by Woodson and
Roberts.  When Louisiana and North Carolina, respondent to those
decisions, again revised their capital punishment laws, they
reenacted the death penalty for murder but not for rape; none of the
seven other legislatures that to our knowledge have amended or
replaced their death penalty statutes since July 2, 1976, including
four States (in addition to Louisiana and North Carolina) that had
authorized the death sentence for rape prior to 1972 and had reacted
to Furman with mandatory statutes, included rape among the crimes
for which death was an authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also
authorized the death penalty in some rape cases, but only where the
victim was a child, and the rapist an adult, the Tennessee statute has
since been invalidated because the death sentence was mandatory. x
x x  The upshot is that Georgia is the sole jurisdiction in the United
States at the present time that authorizes a sentence of death when
the rape victim is an adult woman, and only two other jurisdictions
provide capital punishment when the victim is a child
The current judgment with respect to the death penalty for rape is not
wholly unanimous among state legislatures, but it obviously weighs
very heavily on the side of rejecting capital punishment as a suitable
penalty for raping an adult woman.
x x x  [T]he legislative rejection of capital punishment for rape
strongly confirms our own judgment, which is that death is indeed a
disproportionate penalty for the crime of raping an adult woman.
We do not discount the seriousness of rape as a crime.  It is highly
reprehensible, both in a moral sense and in its almost total contempt
for the personal integrity and autonomy of the female victim and for
the latter's privilege of choosing those with whom intimate
relationships are to be established.  Short of homicide, it is the
'ultimate violation of self.' It is also a violent crime because it
normally involves force, or the threat of force or intimidation, to over
come the will and the capacity of the victim to resist.  Rape is very
often accompanied by physical injury to the female and can also
inflict mental and psychological damage.  Because it undermines the
community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms
of moral depravity and of the injury to the person and to the public, it
does not compare with murder, which does involve the unjustified
taking of human life.  Although it may be accompanied by another
crime, rape by definition does not include the death of or even the
serious injury to another person.  The murderer kills; the rapist, if no
more than that, does not.  Life is over for the victim of the murderer;
for the rape victim, life may not be nearly so happy as it was, but it is
not over and normally is not beyond repair.  We have the abiding
conviction that the death penalty, which 'is unique in its severity and
irrevocability' x x x  is an excessive penalty for the rapist who, as
such, does not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds:
first, that the public has manifested its rejection of the death penalty
as a proper punishment for the crime of rape through the willful
omission by the state legislatures to include rape in their new death
penalty statutes in the aftermath of Furman; and second, that rape,
while concededly a dastardly contemptuous violation of a woman's
spiritual integrity, physical privacy, and psychological balance, does
not involve the taking of life.
Anent the first ground, we fail to see how this could have any
bearing on the Philippine experience and in the context of our own
culture.
Anent the second ground, we disagree with the court's predicate that
the gauge of whether or not a crime warrants the death penalty or
not, is the attendance of the circumstance of death on the part of the
victim.  Such a premise is in fact an ennobling of the biblical notion
of retributive justice of "an eye for an eye, a tooth for a tooth".  We
have already demonstrated earlier in our discussion of heinous
crimes that the forfeiture of life simply because life was taken, never
was a defining essence of the death penalty in the context of our
legal history and cultural experience; rather, the death penalty is
imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely destructive
effects on the national efforts to lift the masses from abject poverty
through organized governmental strategies based on a disciplined
and honest citizenry, and because they have so caused irreparable
and substantial injury to both their victim and the society and a
repetition of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be
permanently prevented from doing so.  At any rate, this court has no
doubts as to the innate heinousness of the crime of rape, as we have
held in the case of People v. Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another
person. It does injury to justice and charity.  Rape deeply wounds the
respect, freedom, and physical and moral integrity to which every
person has a right.  It causes grave damage that can mark the victim
for life. It is always an intrinsically evil act xxx an outrage upon
decency and dignity that hurts not only the victim but the society
itself."
We are not unaware that for all the legal posturings we have so
essayed here, at the heart of the issue of capital punishment is the
wistful, sentimental life-and-death question to which all of us,
without thinking, would answer, "life, of course, over death".  But
dealing with the fundamental question of death provides a context
for struggling with even more basic questions, for to grapple with the
meaning of death is, in an indirect way, to ask the meaning of life.   RTC Decision, p. 3; Rollo, p. 19.
Otherwise put, to ask what the rights are of the dying is to ask what
the rights are of the living.
"Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which
invoke it.  Yet the mounting zeal for its abolition seems to arise from
a sentimentalized hyperfastidiousness that seeks to expunge from the
society all that appears harsh and suppressive.  If we are to preserve
the humane society we will have to retain sufficient strength of
character and will to do the unpleasant in order that tranquillity and
civility may rule comprehensively.  It seems very likely that capital
punishment is a x x x necessary, if limited factor in that maintenance
of social tranquillity and ought to be retained on this ground.  To do
otherwise is to indulge in the luxury of permitting a sense of false
delicacy to reign over the necessity of social survival." [47]
WHEREFORE, in view of all the foregoing, the Motion for
Reconsideration and the Supplemental Motion for Reconsideration
are hereby DENIED[48] for LACK OF MERIT.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima,
Jr., Panganiban, and Torres, Jr., JJ., concur.
 249 SCRA 303, 307-308.
[1]
 See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De
[2]
Leon v. Court of Appeals, 245 SCRA 166, 172 [1995].
[3]
 G.R. No. 108871 promulgated on November 19, 1996.
[4]
  People v. Pimentel, 118 SCRA 695 [1982]; citing People v.
[5]
 Id., p. 744.
[20]

Manigbas, 109 Phil. 469 [1960].

 155 SCRA 327 [1987].
[21]

 Greenhills Airconditioning and Services, Inc. v. National Labor

[6]

Relations Commission, 245 SCRA 384, 389 [1995]; Arambulo v.  Id., p. 335.

[22]

Court of Appeals, 226 SCRA 589, 601 [1993]; Que v. Court of

Appeals, 101 SCRA 13 [1980].  155 SCRA 113 [1987].
[23]

 Suarez v. Court of Appeals, 220 SCRA 274, 279-280 [1993].

[7]
 156 SCRA 242 [1987].
[24]

 81 Phil. 741 [1948].

[8]
 165 SCRA 637 [1988].
[25]

 88 Phil. 36 [1951].

[9]
 170 SCRA 107 [1989].
[26]

[10]
 115 SCRA 688 [1982].  Id., p. 121.
[27]

[11]
 133 SCRA 1 [1984]. Journal, Senate, February 15, 1993, Vol. 2, p. 1246.
[28]

[12]
 147 SCRA 204 [1987].  Record, Senate, March 17, 1993, Vol. IV, p. 77.
[29]

[13]
 81 Phil. 741, 747 [1948].  Id., May 18, 1993, Vol. IV, p. 596.
[30]

[14]
 88 Phil. 36, 43 [1951].  Record, Senate, March 18, 1993, Vol. IV, pp. 106-112.
[31]

[15]
 249 SCRA 246, 253 [1995].  Journal, February 10 & 11, 1993, Vol. II, p.1223.
[32]

[16]
 Record, CONCOM, July 17, 1986, Vol. I, p.676.  Journal, Senate, March 22, 1993, Vol. II, pp.1574-1575.
[33]

[17]
 Id., p. 678.  Record, Senate, May 11, 1993, Vol. IV, pp. 500-501.
[34]

[18]
 Id., p. 680.  Journal, Senate, February 2, 1993, Vol. II, p. 1161.
[35]

[19]
 Record, CONCOM, July 17, 1986, Vol. I, p.712.  Record, House of Representatives, Vol. III, November 9, 1992,
[36]

pp.417-418.
  Record, House of Representatives, Vol. III, November 9, 1992,
[37]

pp.419-20. Batas.org 

 Record, House of Representatives, Vol. V, February 23, 1993, p.

[38]

98.

 People v. Simon, 234 SCRA 555 [1994]; People v. Timple, 237

[39]

SCRA 52 [1994].

 251 SCRA 293 [1995].

[40]

 408 US 238, 33 L Ed 2d 346, 92 S Ct. 2726.

[41]

 428 US 153 49 L Ed 2d 859, 96 S Ct 2909.

[42]

 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950.

[43]

 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.

[44]

 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.

[45]

 G.R. No. 116279, promulgated on January 29, 1996.

[46]

 Donald Atwell Zoll, "A Wistful Goodbye to Capital Punishment,"

[47]

National Review, December 3, 1971, pp.1351-1354.

 Three members of the Court voted to declare RA. 7659

[48]

unconstitutional insofar as it reimposes the death penalty. Two of

them wrote Separate Opinions, which are attached as annexes hereto,
without indicating the names of the authors consistent with the
Court's policy that, in death cases, ponentes of opinions — whether
majority or minority — are not to be indicated.
 Supreme Court of the Philippines
EN BANC
G.R. No. 180016, April 29, 2014
LITO CORPUZ, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule
45 of the Rules of Court, dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set aside the
Decision[1] dated March 22, 2007 and Resolution[2] dated September
5, 2007 of the Court of Appeals (CA), which affirmed with
modification the Decision[3] dated July 30, 2004 of the Regional Trial
Court (RTC), Branch 46, San Fernando City, finding the petitioner
guilty beyond reasonable doubt of the crime of Estafa under Article
315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the
Admiral Royale Casino in Olongapo City sometime in 1990.  Private
complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of
jewelry for sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry on
commission basis.  Private complainant agreed, and as a
consequence, he turned over to petitioner the following items:  an
18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of
P98,000.00, as evidenced by a receipt of even date.  They both
agreed that petitioner shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a period of 60 days.  The
period expired without petitioner remitting the proceeds of the sale
or returning the pieces of jewelry.  When private complainant was
able to meet petitioner, the latter promised the former that he will
pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of
estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
P45,000.00; one (1) three-baht men's bracelet, 22k, worth
P25,000.00; one (1) two-baht ladies' bracelet, 22k, worth P12,000.00,
or in the total amount of Ninety-Eight Thousand Pesos (P98,000.00),
Philippine currency, under expressed obligation on the part of said
accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said
items, with intent to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his aforestated obligation,
did then and there wilfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and
benefit the aforesaid jewelries (sic) or the proceeds of the sale
thereof, and despite repeated demands, the accused failed and
refused to return the said items or to remit the amount  of  Ninety-
Eight  Thousand  Pesos  (P98,000.00),  Philippine currency, to the
damage and prejudice of said Danilo Tangcoy in the aforementioned
amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty.  Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the lone
testimony of Danilo Tangcoy.  On the other hand, the defense
presented the lone testimony of petitioner, which can be summarized,
as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending
loans to Base employees.  For every collection made, they earn a
commission.  Petitioner denied having transacted any business with
private complainant.  However, he admitted obtaining a loan from
Balajadia sometime in 1989 for which he was made to sign a blank
receipt.  He claimed that the same receipt was then dated May 2,
1991 and used as evidence against him for the supposed agreement
to sell the subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt
of the crime charged in the Information.  The dispositive portion of
the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315, paragraph
one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of
deprivation of liberty consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS
MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8)
MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy the
amount of P98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the
appeal of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED.  The assailed
Judgment dated July 30, 2004 of the RTC of San Fernando City (P),
Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the
indeterminate penalty of 4 years and 2 months of prision
correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional P10,000.00, or a total of 7
years.  The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed
with this Court the present petition stating the following grounds:
A.  THE HONORABLE COURT OF APPEALS ERRED IN
CONFIRMING THE ADMISSION AND APPRECIATION BY
THE LOWER COURT OF PROSECUTION EVIDENCE,
INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE
COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;
B.  THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
CRIMINAL INFORMATION FOR ESTAFA WAS NOT
FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT
CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -
1.  THE INFORMATION DID NOT FIX A PERIOD WITHIN
WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED,
IF SOLD;
2.  THE DATE OF THE OCCURRENCE OF THE CRIME
ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS
MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO
BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
1991;
C.  THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND
TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF
UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN
ELEMENT OF THE OFFENSE – WAS PROVED;
D.  THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
PROSECUTION'S CASE WAS PROVEN BEYOND
REASONABLE DOUBT ALTHOUGH -
1.  THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2.  THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;
3.  THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4.  PENAL STATUTES ARE STRICTLY CONSTRUED
AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor
General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to
object to their admissibility.
The information was not defective inasmuch as it sufficiently
established the designation of the offense and the acts complained of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court affirms the findings of
the trial court, absent any showing that the findings are totally devoid
of support in the records, or that they are so glaringly erroneous as to
constitute grave abuse of discretion.[4]  Petitioner is of the opinion
that the CA erred in affirming the factual findings of the trial court. 
He now comes to this Court raising both procedural and substantive
issues.
According to petitioner, the CA erred in affirming the ruling of the
trial court, admitting in evidence a receipt dated May 2, 1991 marked
as Exhibit “A” and its submarkings, although the same was merely a
photocopy, thus, violating the best evidence rule.  However, the
records show that petitioner never objected to the admissibility of the
said evidence at the time it was identified, marked and testified upon
in court by private complainant.  The CA also correctly pointed out
that petitioner also failed to raise an objection in his Comment to the
prosecution's formal offer of evidence and even admitted having
signed the said receipt.  The established doctrine is that when a party
failed to interpose a timely objection to evidence at the time they
were offered in evidence, such objection shall be considered as
waived.[5]
Another procedural issue raised is, as claimed by petitioner, the
formally defective Information filed against him.  He contends that
the Information does not contain the period when the pieces of
jewelry were supposed to be returned and that the date when the
crime occurred was different from the one testified to by private
complainant.  This argument is untenable.  The CA did not err in
finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance in
the Information cannot be made for the first time on appeal.  It is true
that the gravamen of the crime of estafa under Article 315, paragraph
1, subparagraph (b) of the RPC is the appropriation or conversion of
money or property received to the prejudice of the owner [6]  and that
the time of occurrence is not a material ingredient of the crime,
hence, the exclusion of the period and the wrong date of the
occurrence of the crime, as reflected in the Information, do not make
the latter fatally defective.  The CA ruled:
x x x  An information is legally viable as long as it distinctly states
the statutory designation of the offense and the acts or omissions
constitutive thereof.  Then Section 6, Rule 110 of the Rules of Court
provides that a complaint or information is sufficient if it states the
name of the accused; the designation of the offense by the statute;
the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission
of the offense, and the place wherein the offense was committed.  In
the case at bar, a reading of the subject Information shows
compliance with the foregoing rule.  That the time of the commission
of the offense was stated as “ on or about the fifth (5th) day of July,
1991” is not likewise fatal to the prosecution's cause considering that
Section 11 of the same Rule requires a statement of the precise time
only when the same is a material ingredient of the offense.  The
gravamen of the crime of estafa under Article 315, paragraph 1 (b) of
the Revised Penal Code (RPC) is the appropriation or conversion of
money or property received to the prejudice of the offender.  Thus,
aside from the fact that the date of the commission thereof is not an
essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the
Information ipso factodefective.  Moreover, the said date is also near
the due date within which accused-appellant should have delivered
the proceeds or returned the said [pieces of jewelry] as testified upon
by Tangkoy, hence, there was sufficient compliance with the rules. 
Accused-appellant, therefore, cannot now be allowed to claim that he
was not properly apprised of the charges proferred against him. [7]
It must be remembered that petitioner was convicted of the crime of
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud
another by any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a)
that money, goods or other personal property is received by the
offender in trust, or on commission, or for administration, or under
any other obligation involving the duty to make delivery of, or to
return the same; (b) that there be misappropriation or conversion of
such money or property by the offender or denial on his part of such
receipt; (c) that such misappropriation or conversion or denial is to q  How many times?
the prejudice of another; and (d) that there is a demand made by the a  Two times, sir.
offended party on the offender.[8]
q  What did you talk (sic) to him?
Petitioner argues that the last element, which is, that there is a a  About the items I gave to (sic) him, sir.
demand by the offended party on the offender, was not proved.  This
Court disagrees.  In his testimony, private complainant narrated how q  Referring to Exhibit A-2?
he was able to locate petitioner after almost two (2) months from the a  Yes, sir, and according to him he will take his obligation and I
time he gave the pieces of jewelry and asked petitioner about the asked him where the items are and he promised me that he will
same items with the latter promising to pay them.  Thus: pay these amount, sir.

PROS. MARTINEZ q  Up to this time that you were here, were you able to collect from
him partially or full?
q  Now, Mr. Witness, this was executed on 2 May 1991, and this a  No, sir. [9]
transaction could have been finished on 5 July 1991, the question is
what happens (sic) when the deadline came? No specific type of proof is required to show that there was demand.
a  I went looking for him, sir. [10]
 Demand need not even be formal; it may be verbal. [11] The
specific word “demand” need not even be used to show that it has
q  For whom? indeed been made upon the person charged, since even a mere query
a  Lito Corpuz, sir. as to the whereabouts of the money [in this case, property], would be
tantamount to a demand.[12]  As expounded in Asejo v. People:[13]
q  Were you able to look (sic) for him?
a  I looked for him for a week, sir. With regard to the necessity of demand, we agree with the CA that
demand under this kind of estafa need not be formal or written. The
q  Did you know his residence? appellate court observed that the law is silent with regard to the form
a  Yes, sir. of demand in estafa under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a
q  Did you go there? written demand be necessary, the law would have stated so.
a  Yes, sir. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the
q  Did you find him? failure of the prosecution to present a written demand as evidence is
a  No, sir. not fatal.
q  Were you able to talk to him since 5 July 1991? In Tubb v. People, where the complainant merely verbally inquired
a  I talked to him, sir. about the money entrusted to the accused, we held that the query was
tantamount to a demand, thus:
x x x  [T]he law does not require a demand as a condition precedent
to the existence of the crime of embezzlement. It so happens only
that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way,
however, be established by other proof, such as that introduced in the
case at bar.[14]
In view of the foregoing and based on the records, the prosecution
was able to prove the existence of all the elements of the crime.  Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with
an obligation to sell or return the same within sixty (60) days, if
unsold.  There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the prejudice
of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious.  Settled is the
rule that in assessing the credibility of witnesses, this Court gives
great respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their
deportment on the witness stand, an opportunity denied the appellate
courts, which merely rely on the records of the case. [15]  The
assessment by the trial court is even conclusive and binding if not
tainted with arbitrariness or oversight of some fact or circumstance
of weight and influence, especially when such finding is affirmed by
the CA.[16]  Truth is established not by the number of witnesses, but
by the quality of their testimonies, for in determining the value and
credibility of evidence, the witnesses are to be weighed not
numbered.[17]
As regards the penalty, while this Court's Third Division was
deliberating on this case, the question of the continued validity of
imposing on persons convicted of crimes involving property came
up. The legislature apparently pegged these penalties to the value of
the money and property in 1930 when it enacted the Revised Penal
Code. Since the members of the division reached no unanimity on
this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and
resolution. Thus, several amici curiae were invited at the behest of
the Court to give their academic opinions on the matter. Among
those that graciously complied were Dean Jose Manuel Diokno,
President, and the Speaker of the House of Representatives.  The
parties were later heard on oral arguments before the Court en banc,
with Atty. Mario L. Bautista appearing as counsel of the petitioner.
After a thorough consideration of the arguments presented on the
matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range
of penalties that the courts continue to impose on crimes against
property committed today, based on the amount of damage measured
by the value of money eighty years ago in 1932. However, this Court
cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure
in amending the penalties provided for in the said crimes cannot be
remedied through this Court's decisions, as that would be
encroaching upon the power of another branch of the government.
This, however, does not render the whole situation without any
remedy. It can be appropriately presumed that the framers of the
Revised Penal Code (RPC) had anticipated this matter by including
Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable
by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons
which induce the court to believe that said act should be made
the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the
injury caused by the offense.[18]
The first paragraph of the above provision clearly states that for acts
bourne out of a case which is not punishable by law and the court
finds it proper to repress, the remedy is to render the proper decision
and thereafter, report to the Chief Executive, through the Department
of Justice, the reasons why the same act should be the subject of
penal legislation. The premise here is that a deplorable act is present
but is not the subject of any penal legislation, thus, the court is tasked
to inform the Chief Executive of the need to make that act
punishable by law through legislation. The second paragraph is
similar to the first except for the situation wherein the act is already
punishable by law but the corresponding penalty is deemed by the
court as excessive. The remedy therefore, as in the first paragraph is
not to suspend the execution of the sentence but to submit to the
Chief Executive the reasons why the court considers the said penalty
to be non-commensurate with the act committed. Again, the court is
tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,[19] Guillermo
B. Guevara opined that in Article 5, the duty of the court is merely to
report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes
to be harsh. Thus:
This provision is based under the legal maxim “nullum crimen, nulla
poena sige lege,” that is, that there can exist no punishable act except
those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does
not deem it necessary to prohibit its perpetration with penal sanction,
the Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement
of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to
report the matter to the Chief Executive with a recommendation
for an amendment or modification of the legal provisions which
it believes to be harsh.[20]
Anent the non-suspension of the execution of the sentence, retired
Chief Justice Ramon C. Aquino and retired Associate Justice
Carolina C. Griño-Aquino, in their book, The Revised Penal Code,
[21]
 echoed the above-cited commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the
courts have nothing to do with the wisdom or justness of the
penalties fixed by law. “Whether or not the penalties prescribed by
law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators on
the law may fairly differ; but it is the duty of the courts to enforce
the will of the legislator in all cases unless it clearly appears that
a given penalty falls within the prohibited class of excessive fines
or cruel and unusual punishment.” A petition for clemency should
be addressed to the Chief Executive.[22]
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of
P1.00 is equal to P100.00 .  However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition of
the penalties. It must be remembered that the economy fluctuates and
if the proposed imposition of the penalties in crimes against property
be adopted, the penalties will not cease to change, thus, making the
RPC, a self-amending law. Had the framers of the RPC intended that
to be so, it should have provided the same, instead, it included the
earlier cited Article 5 as a remedy. It is also improper to presume
why the present legislature has not made any moves to amend the
subject penalties in order to conform with the present times. For all
we know, the legislature intends to retain the same penalties in order
to deter the further commission of those punishable acts which have
increased tremendously through the years. In fact, in recent moves of
the legislature, it is apparent that it aims to broaden the coverage of
those who violate penal laws. In the crime of Plunder, from its
original minimum amount of P100,000,000.00 plundered, the
legislature lowered it to P50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-
Money Laundering Act may apply, from P1,000,000.00 to
P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the
present penalties do not seem to be excessive compared to the
proposed imposition of their corresponding penalties. In Theft, the
provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be punished
by:
1. The penalty of prision mayor in its minimum and medium
periods, if the value of the thing stolen is more than 12,000 pesos but
does not exceed 22,000 pesos, but if the value of the thing stolen
exceeds the latter amount the penalty shall be the maximum period
of the one prescribed in this paragraph, and one year for each
additional ten thousand pesos, but the total of the penalty which may
be imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but
does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos
but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value
does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of the
next preceding article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50
pesos, when the value of the thing stolen is not over 5 pesos, and the
offender shall have acted under the impulse of hunger, poverty, or
the difficulty of earning a livelihood for the support of himself or his
family.
In a case wherein the value of the thing stolen is P6,000.00, the
above-provision states that the penalty is prision correccional in its
minimum and medium periods (6 months and 1 day to 4 years and 2
months).  Applying the proposal, if the value of the thing stolen is
P6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccionalminimum period (2 months
and 1 day to 2 years and 4  months).  It would seem that under the
present law, the penalty imposed is almost the same as the penalty
proposed.  In fact, after the application of the Indeterminate Sentence
Law under the existing law, the minimum penalty is still lowered by
one degree; hence, the minimum penalty is arresto mayor in its
medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole after
serving the said minimum period and may even apply for probation.  months).
Moreover, under the proposal, the minimum penalty after applying
the Indeterminate Sentence Law is arresto menor in its maximum
period to arresto mayor in its minimum period (21 days to 2 months)
is not too far from the minimum period under the existing law.  Thus,
it would seem that the present penalty imposed under the law is not
at all excessive.  The same is also true in the crime of Estafa. [23]
Moreover, if we apply the ratio of 1:100, as suggested to the value of
the thing stolen in the crime of Theft and the damage caused in the
crime of Estafa, the gap between the minimum and the maximum
amounts, which is the basis of determining the proper penalty to be
imposed, would be too wide and the penalty imposable would no
longer be commensurate to the act committed and the value of the
thing stolen or the damage caused:
I.  Article 309, or the penalties for the crime of Theft, the value
would be modified but the penalties are not changed:
1. P12,000.00 to P22,000.00 will
become P1,200,000.00 to P2,200,000.00, punished by prision
mayor minimum to prision mayor medium (6 years and 1 day to 10
years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to
P1,200,000.00, punished by prision correccional medium and
to prision correccional maximum (2 years, 4 months and 1 day to 6
years).[24]
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,
punishable by prision correccional minimum to prision
correccional medium (6 months and 1 day to 4 years and 2 months).
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00,
punishable by arresto mayor medium to prision
correccional minimum (2 months and 1 day to 2 years and 4
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable
by arresto mayor (1 month and 1 day to 6 months).
6. P5.00 will become P500.00, punishable by arresto
mayor minimum to arresto mayor medium.
x x x x.
II.  Article 315, or the penalties for the crime of Estafa, the value
would also be modified but the penalties are not changed, as follows:
1st. P12,000.00 to P22,000.00, will
become P1,200,000.00 to P2,200,000.00, punishable by prision
correccional maximum to prision mayor minimum (4 years, 2
months and 1 day to 8 years).[25]
2nd. P6,000.00 to P12,000.00 will
become P600,000.00 to P1,200,000.00, punishable by prision
correccional minimum to prision correccional medium (6 months
and 1 day to 4 years and 2 months).[26]
3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00,
punishable by arresto mayor maximum to prision
correccional minimum (4 months and 1 day to 2 years and 4
months).
4th. P200.00 will become P20,000.00, punishable by arresto
mayor maximum (4 months and 1 day to 6 months)
An argument raised by Dean Jose Manuel I. Diokno, one of our
esteemed amici curiae, is that the incremental penalty provided
under Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is
determined according to a valid classification. The test developed by
jurisprudence here and yonder is that of reasonableness, [27] which has
four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class. [28]
According to Dean Diokno, the Incremental Penalty Rule (IPR) does
not rest on substantial distinctions as P10,000.00 may have been
substantial in the past, but it is not so today, which violates the first
requisite; the IPR was devised so that those who
commit estafa involving higher amounts would receive heavier
penalties; however, this is no longer achieved, because a person who
steals P142,000.00 would receive the same penalty as someone who
steals hundreds of millions, which violates the second requisite; and,
the IPR violates requisite no. 3, considering that the IPR is limited to
existing conditions at the time the law was promulgated, conditions
that no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno
and declares the incremental penalty in Article 315 unconstitutional
for violating the equal protection clause, what then is the penalty that
should be applied in case the amount of the thing subject matter of
the crime exceeds P22,000.00?  It seems that the proposition poses
more questions than answers, which leads us even more to conclude
that the appropriate remedy is to refer these matters to Congress for
them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the
IPR unconstitutional, the remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should
be struck down as unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and
unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the
amount is more than Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare the
incremental penalty rule unconstitutional, then that would ... the void
should be filled by Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One
Hundred Thousand (P100,000.00) Pesos ...
DEAN DIOKNO:
Well, my presen ... (interrupted)
JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of
Twenty-Two Thousand (P22,000.00) Pesos you were suggesting an
additional penalty of one (1) year, did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory JUSTICE PERALTA:
interpretation. The only remedy is to go to Congress...

JUSTICE PERALTA:   DEAN DIOKNO:

Ah ... Yes, Your Honor.

DEAN DIOKNO:   JUSTICE PERALTA:

If the Court will say that they can go beyond the literal wording of ... and determine the value or the amount.
the law...
DEAN DIOKNO:
JUSTICE PERALTA: Yes, Your Honor.
But if we de ... (interrupted)
JUSTICE PERALTA:
DEAN DIOKNO: That will be equivalent to the incremental penalty of one (1) year in
....then.... excess of Twenty-Two Thousand (P22,000.00) Pesos.

JUSTICE PERALTA: DEAN DIOKNO:

Ah, yeah. But if we declare the incremental penalty as Yes, Your Honor.
unsconstitutional, the court cannot fix the amount ...
JUSTICE PERALTA:
DEAN DIOKNO: The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
No, Your Honor. Thank you, Dean.

JUSTICE PERALTA: DEAN DIOKNO:

... as the equivalent of one, as an incremental penalty in excess of Thank you.
Twenty-Two Thousand (P22,000.00) Pesos.
x x x x[29]
DEAN DIOKNO:
No, Your Honor. Dean Diokno also contends that Article 315 of the Revised Penal
Code constitutes cruel and unusual punishment. Citing Solem v.
JUSTICE PERALTA: Helm,[30] Dean Diokno avers that the United States Federal Supreme
The Court cannot do that. Court has expanded the application of a similar Constitutional
provision prohibiting cruel and unusual punishment, to the duration
DEAN DIOKNO: of the penalty, and not just its form. The court therein ruled that three
Could not be. things must be done to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and gravity of the
offense, and the harshness of the penalty; (2) Compare the sentences
imposed on other criminals in the same jurisdiction, i.e., whether
more serious crimes are subject to the same penalty or to less serious
penalties; and (3) Compare the sentences imposed for commission of
the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present
case, because in Solem what respondent therein deemed cruel was
the penalty imposed by the state court of South Dakota after it took
into account the latter’s recidivist statute and not the original penalty
for uttering a “no account” check.  Normally, the maximum
punishment for the crime would have been five years imprisonment
and a $5,000.00 fine.  Nonetheless, respondent was sentenced to life
imprisonment without the possibility of parole under South Dakota’s
recidivist statute because of his six prior felony convictions.  Surely,
the factual antecedents of Solem are different from the present
controversy.
With respect to the crime of Qualified Theft, however, it is true that
the imposable penalty for the offense is high.  Nevertheless, the
rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will
essentially gravely abuse the trust and confidence reposed upon her
by her employer.  After accepting and allowing the helper to be a
member of the household, thus entrusting upon such person the
protection and safekeeping of the employer’s loved ones and
properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime and
which, by adopting the proposal, may create serious implications.  property embezzled.
For example, in the crime of Malversation, the penalty imposed
depends on the amount of the money malversed by the public
official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. — Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent,
through abandonment or negligence, shall permit any other person to
take such public funds, or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of such
funds or property, shall suffer:
1.  The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2.  The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos but
does not exceed six thousand pesos.
3.  The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more
than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand
pesos but is less than twenty-two thousand pesos. If the amount
exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the offender.  Robbery with force upon things, it is punished with a penalty
Thus, following the proposal, if the amount malversed
is P200.00 (under the existing law), the amount now
becomes P20,000.00 and the penalty is prision correccional in its
medium and maximum periods (2 years 4 months and 1 day to 6
years). The penalty may not be commensurate to the act of
embezzlement of P20,000.00 compared to the acts committed by
public officials punishable by a special law, i.e., Republic Act No.
3019 or the Anti-Graft and Corrupt Practices Act, specifically
Section 3,[31] wherein the injury caused to the government is not
generally defined by any monetary amount, the penalty (6 years and
1 month to 15 years)[32] under the Anti-Graft Law will now become
higher. This should not be the case, because in the crime of
malversation, the public official takes advantage of his public
position to embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the
penalty of imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in
the ponencia, the sole basis of the penalty will now be the value of
the thing unlawfully taken and no longer the element of force
employed in entering the premises.  It may likewise cause an
inequity between the crime of Qualified Trespass to Dwelling under
Article 280, and this kind of robbery because the former is
punishable by prision correccional in its medium and maximum
periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where
entrance to the premises is with violence or intimidation, which is
the main justification of the penalty.  Whereas in the crime of
of prision mayor (6 years and 1 day to 12 years) if the intruder is
unarmed without the penalty of Fine despite the fact that it is not
merely the illegal entry that is the basis of the penalty but likewise
the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium
and maximum periods (2 months and 1 day to 6 months) if the value
of the damage caused exceeds P1,000.00, but under the proposal, the
value of the damage will now become P100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months).  And,
if the value of the damaged property does not exceed P200.00, the
penalty is arresto menor or a fine of not less than the value of the
damage caused and not more than P200.00, if the amount involved
does not exceed P200.00 or cannot be estimated.  Under the
proposal, P200.00 will now become P20,000.00, which simply
means that the fine of P200.00 under the existing law will now
become P20,000.00.  The amount of Fine under this situation will
now become excessive and afflictive in nature despite the fact that
the offense is categorized as a light felony penalized with a light
penalty under Article 26 of the RPC.[33]  Unless we also amend
Article 26 of the RPC, there will be grave implications on the penalty
of Fine, but changing the same through Court decision, either
expressly or impliedly, may not be legally and constitutionally
feasible.
There are other crimes against property and swindling in the RPC
that may also be affected by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the
National Library and National Museum), Article 312 (Occupation
of real property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief)
and Article 331 (Destroying or damaging statues, public monuments
or paintings).  Other crimes that impose Fine as a penalty will also
be affected, such as: Article 213 (Frauds against the public treasury
and similar offenses), Article 215 (Prohibited Transactions), Article
216 (Possession of prohibited interest by a public officer), Article
218 (Failure of accountable officer to render accounts), Article
219 (Failure of a responsible public officer to render accounts
before leaving the country).
In addition, the proposal will not only affect crimes under the RPC.  economic, and cultural settings were far different from today’s
It will also affect crimes which are punishable by special penal laws,
such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.[34] The law treats cutting, gathering,
collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of
qualified theft.[35] Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 310[36] of the Revised
Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products involved
in the offense.  Now, if we accept the said proposal in the crime of
Theft, will this particular crime of Illegal Logging be amended also
in so far as the penalty is concerned because the penalty is dependent
on Articles 309 and 310 of the RPC?  The answer is in the negative
because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these
laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity.  There may be some
provisions of the law that should be amended; nevertheless, this
Court is in no position to conclude as to the intentions of the framers
of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is
not within the competence of the Court but of the Legislature which
is empowered to conduct public hearings on the matter, consult legal
luminaries and who, after due proceedings, can decide whether or
not to amend or to revise the questioned law or other laws, or even
create a new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend
the Revised Penal Code.  During the oral arguments, counsel for the
Senate informed the Court that at present, fifty-six (56) bills are now
pending in the Senate seeking to amend the Revised Penal Code,
[37]
 each one proposing much needed change and updates to archaic
laws that were promulgated decades ago when the political, socio-
conditions.
Verily, the primordial duty of the Court is merely to apply the law in
such a way that it shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction,
it should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to its terms.
[38]
  The Court should apply the law in a manner that would give
effect to their letter and spirit, especially when the law is clear as to
its intent and purpose.  Succinctly put, the Court should shy away
from encroaching upon the primary function of a co-equal branch of
the Government; otherwise, this would lead to an inexcusable breach
of the doctrine of separation of powers by means of judicial
legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a
penalty or a Fine; hence, it can be increased by the Court when
appropriate.  Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there
may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded by
the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the
time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to
the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the death,
for a period not exceeding five years, the exact duration to be fixed
by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party
as a kind of monetary restitution or compensation to the victim for
the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect.  Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution.  Clearly, this
award of civil indemnity due to the death of the victim could not be
contemplated as akin to the value of a thing that is unlawfully taken
which is the basis in the imposition of the proper penalty in certain
crimes.  Thus, the reasoning in increasing the value of civil
indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio.  Also, it is
apparent from Article 2206 that the law only imposes a minimum
amount for awards of civil indemnity, which is P3,000.00.  The law
did not provide for a ceiling. Thus, although the minimum amount
for the award cannot be changed, increasing the amount awarded as
civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under
Article 2220[39] of the Civil Code also does not fix the amount of
damages that can be awarded.  It is discretionary upon the court,
depending on the mental anguish or the suffering of the private
offended party.  The amount of moral damages can, in relation to
civil indemnity, be adjusted so long as it does not exceed the award
of civil indemnity.
In addition, some may view the penalty provided by law for the
offense committed as tantamount to cruel punishment.  However, all
penalties are generally harsh, being punitive in nature.  Whether or
not they are excessive or amount to cruel punishment is a matter that
should be left to lawmakers.  It is the prerogative of the courts to
apply the law, especially when they are clear and not subject to any
other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio
Carpio’s opinions is that the incremental penalty provision should be
declared unconstitutional and that the courts should only impose the
penalty corresponding to the amount of P22,000.00, regardless if the
actual amount involved exceeds P22,000.00. As suggested, however,
from now until the law is properly amended by Congress, all crimes
of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur
when every accused convicted of the crime of estafa will be meted
penalties different from the proper penalty that should be imposed. 
Such drastic twist in the application of the law has no legal basis and
directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by
virtue of Republic Act No. 7659[40] in December 1993. The said law
has been questioned before this Court. There is, arguably, no
punishment more cruel than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in June 2006 by
Republic Act No. 9346,[41] the Court did not impede the imposition
of the death penalty on the ground that it is a “cruel punishment”
within the purview of Section 19 (1),[42] Article III of the
Constitution. Ultimately, it was through an act of Congress
suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the proper
penalty emanates unconstitutional in the present action.  Not only is
it violative of due process, considering that the State and the
concerned parties were not given the opportunity to comment on the
subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must
be pleaded directly and not collaterally,[43] more so in the present
controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or character of
the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has
regarded as cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would
not thus be within the prohibition.[44]
It takes more than merely being harsh, excessive, out of proportion,
or severe for a penalty to be obnoxious to the Constitution.  The fact
that the punishment authorized by the statute is severe does not make
it cruel and unusual. Expressed in other terms, it has been held that to
come under the ban, the punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the nature of the offense as
to shock the moral sense of the community."[45]
Cruel as it may be, as discussed above, it is for the Congress to
amend the law and adapt it to our modern time.
The solution to the present controversy could not be solved by
merely adjusting the questioned monetary values to the present value
of money based only on the current inflation rate.  There are other
factors and variables that need to be taken into consideration,
researched, and deliberated upon before the said values could be
accurately and properly adjusted.  The effects on the society, the
injured party, the accused, its socio-economic impact, and the likes
must be painstakingly evaluated and weighed upon in order to arrive
at a wholistic change that all of us believe should be made to our
existing law.  Dejectedly, the Court is ill-equipped, has no resources,
and lacks sufficient personnel to conduct public hearings and sponsor
studies and surveys to validly effect these changes in our Revised
Penal Code. This function clearly and appropriately belongs to
Congress.  Even Professor Tadiar concedes to this conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question.  You are suggesting that in order to
determine the value of Peso you have to take into consideration
several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA: PROFESSOR TADIAR:
Consumer price index. That is my position that the Supreme Court ...

PROFESSOR TADIAR: JUSTICE PERALTA:

Yeah. Yeah, okay.

JUSTICE PERALTA: PROFESSOR TADIAR:

Inflation ... ... has no power to utilize the power of judicial review to in order to
adjust, to make the adjustment that is a power that belongs to the
PROFESSOR TADIAR: legislature.
Yes.
JUSTICE PERALTA:
JUSTICE PERALTA: Thank you, Professor.
... and so on.  Is the Supreme Court equipped to determine those
factors? PROFESSOR TADIAR:
Thank you.[46]
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can Finally, the opinion advanced by Chief Justice Maria Lourdes P. A.
be determined utilizing all of those economic terms. Sereno echoes the view that the role of the Court is not merely to
dispense justice, but also the active duty to prevent injustice.  Thus,
JUSTICE PERALTA: in order to prevent injustice in the present controversy, the Court
Yeah, but ... should not impose an obsolete penalty pegged eighty three years ago,
but consider the proposed ratio of 1:100 as simply compensating for
PROFESSOR TADIAR: inflation.  Furthermore, the Court has in the past taken into
And I don’t think it is within the power of the Supreme Court to pass consideration “changed conditions” or “significant changes in
upon and peg the value to One Hundred (P100.00) Pesos to ... circumstances” in its decisions.
JUSTICE PERALTA: Similarly, the Chief Justice is of the view that the Court is not
Yeah. delving into the validity of the substance of a statute.  The issue is no
different from the Court’s adjustment of indemnity in crimes against
PROFESSOR TADIAR: persons, which the Court had previously adjusted in light of current
... One (P1.00.00) Peso in 1930. times, like in the case of People v. Pantoja.[47] Besides, Article 10 of
the Civil Code mandates a presumption that the lawmaking body
JUSTICE PERALTA: intended right and justice to prevail.
That is legislative in nature.
With due respect to the opinions and proposals advanced by the
Chief Justice and my Colleagues, all the proposals ultimately lead to
prohibited judicial legislation.  Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the
Court to legislate laws, such immense power belongs to Congress
and the Court should refrain from crossing this clear-cut divide.  additional 10,000 pesos; but the total penalty which may be imposed
With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of
monetary restitution.  It is truly based on the value of money.  The
same cannot be said on penalties because, as earlier stated, penalties
are not only based on the value of money, but on several other
factors.  Further, since the law is silent as to the maximum amount
that can be awarded and only pegged the minimum sum, increasing
the amount granted as civil indemnity is not proscribed.  Thus, it can
be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA
modified the ruling of the RTC. The RTC imposed the indeterminate
penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal in its minimum
period, as maximum.  However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision
correccional, as minimum, to eight (8) years of prision mayor, as
maximum, plus one (1) year for each additional P10,000.00, or a
total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling
in Cosme, Jr. v. People[48] is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised
Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the fraud is
over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall
be imposed in its maximum period, adding one year for each
shall not exceed twenty years.  In such case, and in connection with
the accessory penalties which may be imposed and for the purpose of
the other provisions of this Code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not
three, periods, in which case, Article 65 of the same Code requires
the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one
period of each of the three portions. Applying the latter provisions,
the maximum, medium and minimum periods of the penalty
prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months,
20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months,
10 days[49]
To compute the maximum period of the prescribed penalty, prisión
correccional maximum to prisión mayor minimum should be
divided into three equal portions of time each of which portion shall
be deemed to form one period in accordance with Article 65 [50] of the
RPC.[51]  In the present case, the amount involved is P98,000.00,
which exceeds P22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor.  Article 315 also states that a period
of one year shall be added to the penalty for every additional
P10,000.00 defrauded in excess of P22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00 more than
the P22,000.00 ceiling set by law, then, adding one year for each
additional P10,000.00, the maximum period of 6 years, 8 months and
21 days to 8 years of prision mayor minimum would be increased by
7 years.  Taking the maximum of the prescribed penalty, which is 8
years, plus an additional 7 years, the maximum of the indeterminate
penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty
prescribed by law for the estafa charge against petitioner is prision
correccional maximum to prision mayor minimum, the penalty next
lower would then be prision correccional in its minimum and
medium periods. Thus, the minimum term of the indeterminate
sentence should be anywhere from 6 months and 1 day to 4 years and
2 months.
One final note, the Court should give Congress a chance to perform
its primordial duty of lawmaking.  The Court should not pre-empt
Congress and usurp its inherent powers of making and enacting
laws.  While it may be the most expeditious approach, a short cut by
judicial fiat is a dangerous proposition, lest the Court dare trespass
on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated
November 5, 2007 of petitioner Lito Corpuz is hereby DENIED.
Consequently, the Decision dated March 22, 2007 and Resolution
dated September 5, 2007 of the Court of Appeals, which affirmed
with modification the Decision dated July 30, 2004 of the Regional
Trial Court, Branch 46, San Fernando City, finding petitioner guilty
beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMEDwith MODIFICATION that the penalty
imposed is the indeterminate penalty of imprisonment ranging from
THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS
of prision correccional, as minimum, to FIFTEEN (15) YEARS
of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this
Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the
Senate and the Speaker of the House of Representatives.
SO ORDERED.
Velasco, Jr., Leonardo-De Castro, Villarama, Jr., Perez, Mendoza,
and Reyes, JJ., concur.
Sereno, C.J., see concurring and dissenting opinion.
Carpio, J., see dissenting opinion.
Brion, J., see concurring opinion.
Bersamin, J., I take no part due to prior action in the CA.
Del Castillo, J., I join the dissent of J. Abad.
Abad, J., see dissenting opinion.
Perlas-Bernabe, J., no part.
Leonen, J., I dissent on penalties, see separate opinion.
 Penned by Associate Justice Estela M. Perlas-Bernabe (now a
[1]
member of the Supreme Court), with Associate Justices Rodrigo V.
Cosico and Lucas P. Bersamin (now a member of the Supreme
Court), concurring; rollo, pp. 31-41.
 Rollo, p. 43.
[2]
 Id. at 48-52.
[3]
 Libuit v. People, 506 Phil. 591, 599 (2005).
[4]
 Blas v. Angeles-Hutalla, 482 Phil. 485, 501 (2004).
[5]
 Quinto v. People, 365 Phil. 259, 270 (1999).
[6]
  Rollo, p. 37. (Citations omitted.)
[7]
Rosario y Natividad, 62 Phil. 824 (1936). (Emphasis supplied.)

 Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v.

[8]
 Art. 315. Swindling (estafa). — Any person who shall defraud
[23]

Court of Appeals, 378 Phil. 670, 675 (1999). another by any of the means mentioned hereinbelow shall be
punished by:
 TSN, December 17, 1992, pp. 9-10. (Emphasis supplied.)
[9]

1st. The penalty of prision correccional in its maximum period

[10]
 Tan v. People, 542 Phil. 188, 201 (2007). to prision mayor in its minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if such
[11]
 Id.,  citing Lee v. People, 495 Phil. 239, 250 (2005). amount exceeds the latter sum, the penalty provided in this paragraph
shall be imposed in its maximum period, adding one year for each
[12]
 Id. additional 10,000 pesos; but the total penalty which may be imposed
shall not exceed twenty years. In such cases, and in connection with
[13]
 555 Phil. 106 (2007). the accessory penalties which may be imposed under the provisions
of this Code, the penalty shall be termed prision mayor or reclusion
[14]
 Id. at 114. (Citations omitted.) temporal, as the case may be.

 Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v.

[15]
2nd. The penalty of prision correccional in its minimum and
Garillo, 446 Phil. 163, 174-175 (2003). medium periods, if the amount of the fraud is over 6,000 pesos but
does not exceed 12,000 pesos;
 Id.,  citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v.
[16]

Bulan, 498 Phil. 586, 598 (2005). 3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos
[17]
 Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999). but does not exceed 6,000 pesos; and
[18]
 Emphasis supplied. 4th. By arresto mayor in its maximum period, if such amount does
not exceed 200 pesos, provided that in the four cases mentioned, the
[19]
 Third Edition, 1940. fraud be committed by any of the following means:
[20]
 Id. at 16.  (Emphasis supplied) 1. With unfaithfulness or abuse of confidence, namely:
[21]
 1997 Edition. (a) By altering the substance, quantity, or quality or anything of
value which the offender shall deliver by virtue of an obligation to
 Id. at 93, citing United States v. Valera Ang Y, 26 Phil. 598
[22]
do so, even though such obligation be based on an immoral or illegal
(1914); People v. Salazar y Gabriel, 102 Phil. 1184 (1958); Tiu Ua, consideration.
51 O.G. 1863; Limaco, 99 Phil. 35 (1956), and People v. Del
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money,
goods, or other property.
(c) By taking undue advantage of the signature of the offended party
in blank, and by writing any document above such signature in
blank, to the prejudice of the offended party or of any third person.
2. By means of any of the following false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of the
fraud:
(a) By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits.
(b) By altering the quality, fineness or weight of anything pertaining
to his art or business.
(c) By pretending to have bribed any Government employee, without
prejudice to the action for calumny which the offended party may
deem proper to bring against the offender. In this case, the offender
shall be punished by the maximum period of the penalty.
(d) [By post-dating a check, or issuing a check in payment of an
obligation when the offender therein were not sufficient to cover the
amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three (3) days
from receipt of notice from the bank and/or the payee or holder that
said check has been dishonored for lack of insufficiency of funds
shall be prima facie evidence of deceit constituting false pretense or
fraudulent act. (As amended by R.A. 4885, approved June 17,
1967.)]
(e) By obtaining any food, refreshment or accommodation at a hotel,
inn, restaurant, boarding house, lodging house, or apartment house
and the like without paying therefor, with intent to defraud the
proprietor or manager thereof, or by obtaining credit at hotel, inn,
restaurant, boarding house, lodging house, or apartment house by the
use of any false pretense, or by abandoning or surreptitiously
removing any part of his baggage from a hotel, inn, restaurant,
boarding house, lodging house or apartment house after obtaining
credit, food, refreshment or accommodation therein without paying
for his food, refreshment or accommodation.
3. Through any of the following fraudulent means: (a) By inducing
another, by means of deceit, to sign any document.
(b) By resorting to some fraudulent practice to insure success in a
gambling game.
(c) By removing, concealing or destroying, in whole or in part, any
court record, office files, document or any other papers.
 May be entitled to Probation.
[24]
 May be entitled to Probation if the maximum penalty imposed is 6
[25]
years.
 May be entitled to Probation.
[26]
 Quinto v. Commission on Elections, G.R. No. 189698, February
[27]
22, 2010, 613 SCRA 385, 414.
 People v. Cayat, 68 Phil. 12, 18 (1939).
[28]
 TSN, Oral Arguments, February 25, 2014, pp. 192-195.
[29]
  463 U.S. 277 (1983)
[30]
 Section 3. Corrupt practices of public officers. -  In addition to
[31]
acts or omissions of public officers already penalized by existing
law, the following shall constitute corrupt practices of any public
officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public officer to
perform an act constituting a violation of rules and regulations duly
promulgated by competent authority or an offense in connection with
the official duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or offense.
(b) Directly or indirectly requesting or receiving any gift, present,
share, percentage, or benefit, for himself or for any other person, in
connection with any contract or transaction between the Government
and any other part, wherein the public officer in his official capacity
has to intervene under the law.
(c) Directly or indirectly requesting or receiving any gift, present or
other pecuniary or material benefit, for himself or for another, from
any person for whom the public officer, in any manner or capacity,
has secured or obtained, or will secure or obtain, any Government
permit or license, in consideration for the help given or to be given,
without prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending official
business with him during the pendency thereof or within one year
after its termination.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative
or judicial functions through manifest partiality, evident bad faith or
gross inexcusable negligence. This provision shall apply to officers
and employees of offices or government corporations charged with
the grant of licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or request, without
sufficient justification, to act within a reasonable time on any matter
pending before him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter some pecuniary
or material benefit or advantage, or for the purpose of favoring his
own interest or giving undue advantage in favor of or discriminating
against any other interested party.
(g) Entering, on behalf of the Government, into any contract or
transaction manifestly and grossly disadvantageous to the same,
whether or not the public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in
any business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from having any
interest.
(i) Directly or indirectly becoming interested, for personal gain, or
having a material interest in any transaction or act requiring the
approval of a board, panel or group of which he is a member, and
which exercises discretion in such approval, even if he votes against
the same or does not participate in the action of the board,
committee, panel or group.
Interest for personal gain shall be presumed against those public
officers responsible for the approval of manifestly unlawful,
inequitable, or irregular transaction or acts by the board, panel or
group to which they belong.
(j) Knowingly approving or granting any license, permit, privilege or
benefit in favor of any person not qualified for or not legally entitled
to such license, permit, privilege or advantage, or of a mere
representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character,
acquired by his office or by him on account of his official position to
unauthorized persons, or releasing such information in advance of its
authorized release date.
The person giving the gift, present, share, percentage or benefit
referred to in subparagraphs (b) and (c); or offering or giving to the
public officer the employment mentioned in subparagraph (d); or
urging the divulging or untimely release of the confidential
information referred to in subparagraph (k) of this section shall,
together with the offending public officer, be punished under Section
nine of this Act and shall be permanently or temporarily disqualified
in the discretion of the Court, from transacting business in any form
with the Government.
 R.A. No. 3019, Sec. 9.
[32]
 Art. 26. When afflictive, correctional, or light penalty. — A fine,
[33]
whether imposed as a single of as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a
correctional penalty, if it does not exceed 6,000 pesos but is not less
than 200 pesos; and a light penalty if it less than 200 pesos.
 Revised Forestry Code, as amended by E.O. No. 277, Series of
[34]
1987.
 Taopa v. People, 592 Phil. 341, 345 (2005).
[35]
 Art. 310. Qualified theft. — The crime of theft shall be punished
[36]
by the penalties next higher by two degrees than those respectively
specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen
is motor vehicle, mail matter or large cattle or consists of coconuts
taken from the premises of the plantation or fish taken from a
fishpond or fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic erruption, or any other calamity,
vehicular accident or civil disturbance.
 TSN, Oral Arguments, February 25, 2014, p. 167.
[37]
 People v. Quijada, 328 Phil. 505, 548 (1996).
[38]
 Art. 2220. Willful injury to property may be a legal ground for
[39]
awarding moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule applies to
breaches of contract where the defendant acted fraudulently or in bad
faith.
 AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN
[40]
HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE
REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL
PENAL LAWS, AND FOR OTHER PURPOSES.
 AN ACT PROHIBITING THE IMPOSITION OF DEATH
[41]
PENALTY IN THE PHILIPPINES.
 Section 19.
[42]
1. Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted.  x x x.
 Gutierrez v. Department of Budget and Management, G.R. No.
[43]
153266, 159007, 159029, 170084, 172713, 173119, 176477, 177990,
A.M. No. 06-4-02-SB,  March 18, 2010, 616 SCRA 1, 25.
 People v. De la Cruz, 92 Phil. 906, 908 (1953); People v.
[44]
Tongko, 353 Phil. 37, 43 (1998).
 People v. Estoista, 93 Phil. 647, 655 (1953); People v.
[45]
Dionisio, No. L-15513, March 27, 1968, 22 SCRA 1299, 1301-1302.

 TSN, Oral Arguments, February 25, 2014, pp. 183-185.
[46]
 No. L-18793, October 11, 1968, 25 SCRA 468.
[47]
 Supra note 15.
[48]
 Id.  at 71-72.
[49]
 ART. 65. Rule in Cases in Which the Penalty is Not Composed of
[50]
Three Periods. – In cases in which the penalty prescribed by law is
not composed of three periods, the courts shall apply the rules
contained in the foregoing articles, dividing into three equal portions
the time included in the penalty prescribed, and forming one period
of each of the three portions.
 People v. Temporada, G.R. No. 173473, December 17, 2008, 574
[51]
SCRA 258, 284.
CONCURRING AND DISSENTING OPINION  should not be prepared to accept.
SERENO, CJ:
The measure of a just society depends not only on how it apprehends
and punishes the guilty. It also lies in the dignity and fairness it
collectively accords convicted persons who, irrevocably, are still
members of that society. The duty of the Court in this case is not
only to dispense justice, but to actively prevent injustice wrought by
inaction on the question of the continued justness of the penalties
under Article 315 of the Revised Penal Code.
I concur with the ponencia in affirming the conviction of petitioner
but vote to apply the penalty for estafa adjusted to the present value
of the thing subject of the offense. Considering that the penalty has
remained untouched for eighty-three years, the Court cannot adhere
to its literal imposition without first revisiting the assigned values on
which such penalty was based. The Legislature of 1930 pegged the
penalties at the prevailing value of money at the time of the
enactment of the Revised Penal Code. Apart from its representation
as a basket of goods or as a means of exchange, money has no
independent value by itself, and that is how the law has always seen
it. Even this outlook must then necessarily affect our views regarding
the liberty of persons and how money affects it.
My colleagues have presented differing approaches supported by
equally keen arguments. However, were we to take the convenient
route of mechanical application, we would be perpetuating an
erroneous result from lamentable inaction. Would this Court abdicate
its duty at the risk of endangering the right to liberty of the accused?
In the past, the Court has never shirked from its role of interpreting
the law, always with a careful consideration of its minimum burden:
to prevent a result that is manifestly unjust. That the fundamental
right to life and liberty is made to depend solely on Congress or the
mere passage of time with respect to an omission is a result the Court
The legislative intent behind provisions of the Revised Penal Code is
to create prison terms dependent upon the value of the property
subject of the crime. A prison term is virtually monetized, while an
individual’s life and well-being hang in the balance. It is incumbent
upon the Court to preserve the intent of Congress while crucially
ensuring that the individual’s liberty is not impinged upon any longer
than necessary. This is distinct from the situation contemplated under
Article 5, par. 2 of the Penal Code,[1] in which the Court would need
to delve into the wisdom of the law, i.e. the appropriateness of the
penalty taking into account the degree of malice and the injury
caused by the offense.

Thus, the crux of the present case is simple judicial application of the
doctrines that in cases of doubt: 1) the law must be construed in
favor of the accused, 2) it is presumed that the lawmaking body
intended right and justice to prevail. This duty of judicial
construction is understood to permeate every corner where the Court
exercises its adjudicative function, specifically in how it expounds
on criminal rules. To assume that the Court would be changing the
penalty imprudently leads to a misplaced apprehension that it
dabbles in judicial legislation, when it is merely exercising its
constitutional role of interpretation.
Adjusting the amounts to the
present value of money recognizes
that money is simply an assigned
representation, similar to the Court’s
ruling in People v. Pantoja.
Ruling in accordance with “felt necessities of the time” [2] or in
recognition of considerably changed circumstances is not a novel
judicial approach. In Central Bank Employees v. BSP, the Court
posed this question: Can a provision of law, initially valid, become
subsequently unconstitutional on the ground that its continued
operation would violate the equal protection of the law?  The Court
thus considered the legal effect of the passage of time, stating:
Thus, if a statute in its practical operation becomes arbitrary or
confiscatory, its validity, even though affirmed by a former
adjudication, is open to inquiry and investigation in the light of
changed conditions.  x x x.
In the Philippine setting, this Court declared the continued
enforcement of a valid law as unconstitutional as a “consequence of
significant changes in circumstances.” In Rutter v. Esteban, We
upheld the constitutionality of the moratorium law – despite its
enactment and operation being a valid exercise by the State of its
police power – but also ruled that the continued enforcement of the
otherwise valid law would be unreasonable and oppressive. The
Court noted the subsequent changes in the country's business,
industry and agriculture. Thus, the law was set aside because its
continued operation would be grossly discriminatory and lead to the
oppression of the creditors. ”[3]
It is axiomatic that laws, customs, public policy and practice evolve
with the passage of time; so too, does monetary valuation. Money
has no value in and of itself except that which we assign, making it
susceptible to construction and interpretation. Money is not real in
the sense that it is capable of being indexed. Viewed in this way,
human lives and liberty cannot be made dependent on a mere index
of almost a century ago.
I submit that in the present case, the Court is not even delving into
questions of validity of the substance of the statute. This is no
different from the Court’s adjustment of indemnity in crimes against
persons or the determination of valuation in expropriation cases. We
have continually checked penalties in criminal cases, adjusted the
amounts of damages and indemnities according to the
appropriateness thereof in light of current times. We have done so
with eyes open, knowing that the adjustments reflect a realization
that the value of the peso has changed over time. If the purchasing
power of the peso was accepted as a “judicially manageable
standard” in those cases, there is no reason for the Court not to apply
it in favor of the accused herein, especially because it is mandated to
do so.
In People v. Pantoja, concerning compensatory damages for death,
the Court explained this adjustment in uncomplicated terms:
In 1948, the purchasing power of the Philippine peso was one-third
of its pre-war purchasing power. In 1950, when the New Civil Code
took effect, the minimum amount of compensatory damages for
death caused by a crime or quasi-delict was fixed in Article 2206 of
the Code at P3,000. The article repealed by implication
Commonwealth Act No. 284. Hence, from the time the New Civil
Code took effect, the Courts could properly have awarded P9,000 as
compensatory damages for death caused by a crime or quasi- delict.
It is common knowledge that from 1948 to the present (1968), due to
economic circumstances beyond governmental control, the
purchasing power of the Philippine peso has declined further such
that the rate of exchange now in the free market is U.S. $1.00 to
almost 4.00 Philippine pesos. This means that the present purchasing
power of the Philippine peso is one-fourth of its pre-war purchasing
power. We are, therefore, of the considered opinion that the amount
of award of compensatory damages for death caused by a crime or
quasi-delict should now be P12,000.”[4]
I agree with the view of Justice Roberto A. Abad that while Article
2206 of the Civil Code sets only a minimum amount, the Court since
then has regularly increased amounts awarded by the lower courts.
Tellingly, these decisions and resolutions are not mere suggestions or
guidelines for the trial courts’ exercise of discretion, but are actual
findings of error.[5]
Pantoja’s recognition of inflation as a reality – among other
instances when the Court has acknowledged “changed conditions” –
only shows that criminal rules, especially the implementation of
penalties, must also evolve. As societies develop, become more
enlightened, new truths are disclosed. The Court as an institution
cannot ignore these truths to the detriment of basic rights. The reality
is that property-related crimes are affected by external economic
forces,[6] rendering the penalties vulnerable to these forces.
It is a basic constitutional
doctrine that the slightest  forwards the State’s concern “not only in the imperative necessity of
doubt must be resolved in  protecting the social organization against the criminal acts of
favor of the accused.
The constitutional mandate is that the Court must construe criminal
rules in favor of the accused. In fact, the slightest doubt must be
resolved in favour of the accused.[7] This directive is moored on the
equally vital doctrine of presumption of innocence.[8] These
principles call for the adoption of an interpretation which is more
lenient.[9] Time and again, courts harken back to the pro reo rule
when observing leniency, explaining: "The scales of justice must
hang equal and, in fact should be tipped in favor of the accused
because of the constitutional presumption of innocence." [10]
This rule underpins the prospectivity of our penal laws (laws shall
have no retroactive application, unless the contrary is provided) and
its exception (laws have prospective application, unless they are
favorable to the accused).[11] The pro reo rule has been applied in the
imposition of penalties, specifically the death penalty [12] and more
recently, the proper construction and application of the Indeterminate
Sentence Law.
The rationale behind the pro reo rule and other rules that favor the
accused is anchored on the rehabilitative philosophy of our penal
system. In People v. Ducosin, the Court explained that it is
“necessary to consider the criminal, first, as an individual and,
second, as a member of society. This opens up an almost limitless
field of investigation and study which it is the duty of the court to
explore in each case as far as is humanly possible, with the end in
view that penalties shall not be standardized but fitted as far as is
possible to the individual, with due regard to the imperative necessity
of protecting the social order.”[13]
Thus, with the same legislative intent to shorten a defendant’s term
of imprisonment embodied in the Indeterminate Sentence Law, I
believe the adjustment of penalties considered in the present case
destructive individuals but also in redeeming the individual for
economic usefulness and other social ends.”[14] This approach would
be more in accord with the pro reo rule and the overarching
paradigm of our penal system.
In past instances, the Court has
not only laid down guidelines
but made actual policy  foregoing policy of the Supreme Court on the matter of the
determinations for the imposition  imposition of penalties for violations of B.P. Blg. 22. The Court
of penalties.
Section 1 of Batas Pambansa Blg. 22  or the Bouncing Checks Law
imposes the penalty of imprisonment of thirty days to one year OR a
fine double the amount of the check, or both, at the court’s
discretion. In Vaca v. Court of Appeals, the Supreme Court deleted
the penalty of imprisonment meted out by the trial court and imposed
only the penalty of fine, reasoning:
Petitioners are first-time offenders. They are Filipino entrepreneurs
who presumably contribute to the national economy. Apparently,
they brought this appeal, believing in all good faith, although
mistakenly that they had not committed a violation of B.P. Blg. 22.
Otherwise, they could simply have accepted the judgment of the trial
court and applied for probation to evade a prison term. It would best
serve the ends of criminal justice if in fixing the penalty within the
range of discretion allowed by Section 1, par. 1, the same philosophy
underlying the Indeterminate Sentence Law is observed, namely, that
of redeeming valuable human material and preventing unnecessary
deprivation of personal liberty and economic usefulness with due
regard to the protection of the social order. In this case, we believe
that a fine in an amount equal to double the amount of the check
involved is an appropriate penalty to impose on each of the
petitioners.[15]
The Court did not expressly make a finding that the trial court erred
in exercising its discretion, but stated that correcting the penalty
would best serve the ends of criminal justice. This policy was
applied in Lim v. People,[16] which imposed only the fine under B.P.
Blg. 22. The Court then issued Administrative Circular No. 12-2000,
which states:
All courts and judges concerned should henceforth take note of the
Administrator shall cause the immediate dissemination of this
Administrative Circular to all courts and judges concerned.
This Administrative Circular, referred to and approved by the
Supreme Court en banc, shall take effect upon its issuance. [17]
Administrative Circular No. 13-2001 further clarifies that: “The clear
tenor and intention of Administrative Circular No. 12-P2000 is not to
remove imprisonment as an alternative penalty, but to lay down a
rule of preference in the application of the penalties provided for
in B.P. Blg. 22 xxx such that where the circumstances of both the
offense and the offender clearly indicate good faith or a clear mistake
of fact without taint of negligence, the imposition of a fine alone
should be considered as the more appropriate penalty. Needless to
say, the determination of whether the circumstances warrant the
imposition of a fine alone rests solely upon the Judge.”[18]
Hence, the imposition of a policy on penalties is not far removed
from the judicial construction exercised in the present case.
Establishing a policy or a rule of preference towards
the unnecessary deprivation of personal liberty and economic
usefulness has always been within the scope of judicial power.
Article 10 of the Civil Code 
mandates a presumption that the
lawmaking body intended right 
and justice to prevail.
Article 10 of the Civil Code states: “In case of doubt in the
interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.” The Code
Commission found it necessary to include this provision to
“strengthen the determination of the Court to avoid an injustice
which may apparently be authorized in some way of interpreting the
law.”[19]
In Salvacion v. Central Bank, the Court warned: “In our
predisposition to discover the “original intent” of a statute, courts
become the unfeeling pillars of the status quo. Little do we realize
that statutes or even constitutions are bundles of compromises
thrown our way by their framers. Unless we exercise vigilance, the
statute may already be out of tune and irrelevant to our
day.” Salvacion involved the rape of a minor by a foreign tourist and
the execution of the final judgment in the case for damages on the
tourist’s dollar deposit accounts. The Court refused to apply Section
113 of Central Bank Circular No. 960 which exempts foreign
currency deposits from attachment, garnishment or any other order
or process of any court, because “the law failed to anticipate the
iniquitous effects producing outright injustice and inequality such
as the case before us.”[20] Applying Article 10, the Court held: “In
fine, the application of the law depends on the extent of its justice. x
x x Simply stated, when the statute is silent or ambiguous, this is one
of those fundamental solutions that would respond to the vehement
urge of conscience.”[21]
The majority view states that to embark on this formulation is
dangerous, uncertain, or too taxing. Yet even counsel for the House
of Representatives admits that inflation can be taken into
consideration, and that the values to be used in the conversion are
easily available. There is sufficient basis – through the efforts of the
authorized statistical organizations[22] andBangko Sentral ng
Pilipinas, who collect data year to year – that viably establish the
purchasing power of the peso.
More importantly, fear of clogged dockets and the inconvenience of
a perceived distortion are operational concerns that are not sufficient
justification to re-tilt the scales to the prejudice of the accused. It
does not impact on the fact that by adjusting the questioned amounts
to the present value of money, the Court would merely be following
the mandate of Article 10 and fulfilling its proper constitutional role.
I therefore vote to affirm the conviction of petitioner, but to impose
the penalty adjusted to present value, as proposed by Justice Abad.
 “In the same way, the court shall submit to the Chief Executive,
[1]
through the Department of Justice, such statement as may be deemed
proper, without suspending the execution of the sentence, when a
strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration
the degree of malice and the injury caused by the offense.”
 From the first of 12 Lowell Lectures delivered by Oliver Wendell
[2]
Holmes on November 23, 1880.
 487 Phil. 531, 564 (2004).
[3]
 134 Phil. 453 (1968).
[4]
 Decision, p. 12.
[5]
 Dean Sedfrey M. Candelaria, Comment, 30 September 2013.
[6]
 People v. Milan, 370 Phil. 493, 506 (1999).
[7]
 1987 Constitution Sec. 14(2) states, “In all criminal prosecutions,
[8]
the accused shall be presumed innocent until the contrary is proved.”
 Mediatrix Carungcong as Administratrix v. People of the
[9]
Philippines, et al., G.R. No. 181409, 11 February 2010, 612 SCRA
272.
  People v. Opida, 226 Phil. 218, 226 (1986).
[10]

 Boado, Leonor, Notes and Cases on the Revised Penal Code, p. 7,

[11]
DISSENTING OPINION
(2008).

 For a crime committed in 1987, the Court refused to reimpose the

[12]
CARPIO, J.:
death penalty under Republic Act 7659. (People v. Bracamonte 327
Phil. 160, (1996). I vote to grant the petition in part by declaring unconstitutional that
portion of the first paragraph of Article 315 of Act No. 3815, as
 59 Phil. 109 (1933).
[13]
amended (Code), mandating the imposition of maximum penalty
based on the amount of the fraud exceeding P22,000. I do so on the
 Id. at 117.
[14]
ground  that imposing the maximum period of the penalty prescribed
in Article 315[1] of the Code in such a manner, unadjusted to
 359 Phil. 187 (1998).
[15]
inflation, amounts to cruel punishment within the purview of Section
19(1), Article III of the Constitution.[2]
 394 Phil. 844 (2000).
[16]

Cruel Punishment Clause Bans

 Issued on 21 November 2000.
[17]
Odious and Disproportionate Punishments
 The issuance of this Administrative Circular was authorized by
[18]
The Cruel Punishment Clause first appeared in the English Bill of
the Court En Banc in A.M. No. 00-11-01-SC at its session on 13 Rights of 1689[3] which mandated that  “excessive bail ought not to
February 2001. be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The prohibition restrained the King from
 Report of the Code Commission, p. 78.
[19]
punishing convicts in ways inconsistent with human dignity.[4] Over
a century later, the Americans adopted  the Clause as the Eighth
 343 Phil. 539 (1997).
[20]
Amendment[5] to their Bill of Rights of 1791. When the United States
acquired these Islands in 1898 under the Treaty of Paris (following
 Id., citing Padilla v. Padilla, 74 Phil. 377 (1943).
[21]
the defeat of Spain in the Spanish-American War), the Eighth
Amendment was extended to this jurisdiction, first under President
 Pursuant to Republic Act 10625, the National Statistics Office is
[22]
McKinley’s Instructions to the Second Philippine Commission and
(NSO) now incorporated into the Philippine Statistical Authority, later under the Organic Acts passed by the US Congress. [6] The
along with the National Statistical Coordination Board and other Clause was retained as part of the Bill of Rights of succeeding
agencies. Philippine Constitutions during the Commonwealth and post-
independence eras.
Early on, the question arose whether the Clause serves only to limit
the legislature’s power to inflict certain forms of punishment (e.g.,
torture) or whether it also prohibits the legislature from imposing
punishments whose extent is excessive or disproportionate to the
crime.[7] It did not take long for the US Supreme Court to settle the
debate. In reviewing a 1902 ruling of this Court sentencing an
accused to 15 years of cadena temporal with fine and accessory
penalties[8] for falsification of a public document, the US Supreme
Court set aside the judgment, holding that the punishment was “cruel
in its excess of imprisonment and that which accompanies and
follows the imprisonment.”[9] In refusing to give a narrow
interpretation to the Clause, that court observed that the “meaning
and vitality of the Constitution have developed against narrow and
restrictive construction.”[10] Proportionality is now a staple analytical
tool in the US jurisdiction to test claims of cruel punishment under
penal statutes imposing the death penalty.[11]
Our own jurisprudence subscribe to such construction of the Cruel
Punishment Clause. During the US colonial occupation, this Court
was expectedly bound by the US Supreme Court’s interpretation of
the Eighth Amendment as “the exact language of the Constitution of
the United States [in the Eighth Amendment] is used in the
Philippine Bill [of 1902]”[12]and later, in the Autonomy Act of 1916.
Hence, in its rulings interpreting the Clause, the Court read the
provision as a limitation on the power of the colonial legislature not
only on the form but also on the extent of punishments it can enact.
[13]
During the Commonwealth period, the text of the Eighth
Amendment was substantially adopted as Section 1(19), Article III
of the 1935 Constitution.[14] Owing in no small measure to the dearth
of discussion on the meaning of the Clause during the deliberations
of the 1934 Constitutional Convention, the Court saw no reason to
deviate from its colonial-era jurisprudence. [15]
The 1973 Constitution, replacing the 1935 Charter, retained the
Clause as part of the Bill of Rights.[16] The Court, however, had no
occasion to pass upon any matter calling for the interpretation of the
Clause until after the new Constitution, which carried over the
Clause as Section 19(1) of Article III,  took effect in February 1987.
In its post-1987 jurisprudence, the Court continued to rely on its
rulings rendered under the 1935 Constitution.[17]
Clearly then, the proposition that the Cruel Punishment Clause limits
the legislature’s power to inflict certain forms of punishments only,
allowing it to impose penalties disproportionate to the offense
committed, runs counter to the grain of  decades-old jurisprudence
here and abroad.  Such interpretation, which rests on a strict
originalist reading of the Eighth Amendment of the US Constitution,
[18]
 never gained traction in the United States[19] and it makes no 
sense to insist that such view applies in this jurisdiction.
In the first place, the US Constitution, unlike our present
Constitution, has essentially remained unchanged since its adoption
in 1787 (save for the inclusion of the Bill of Rights in 1791 and other
later piecemeal amendments).  The 1987 Constitution is already the
third in the 20th century, following the 1935 Commonwealth
Constitution and the 1973 Martial Law Constitution.[20] When the
present Constitution was ratified in 1987, nearly two millennia after
the US adopted the Eighth Amendment, the Filipino people who
voted for its approval could not have intended  Section 19(1) of
Article III to embody the US originalists’ interpretation of the Eighth
Amendment. It is more consistent with reason and common sense to
say that the Filipino people understood the Clause to embrace “cruel,
degrading and inhuman” punishments in its 20th century, Filipino
conception, grounded on their collective experiences and sense of
humanity.
Indeed, the Filipino people who ratified the present Constitution
could not have intended to limit the reach of the Cruel Punishment
Clause to cover torture and other forms of odious punishments only
because nearly four decades before the present Constitution took
effect, the Philippine government joined the community of nations in
approving the Universal Declaration of Human Rights (UDHR) in
1948 which bans  “torture or x x x cruel, inhuman or degrading
treatment or punishment.”[21] In 1986, shortly before the Constitution
took effect, the Philippines ratified the International Covenant for
Civil and Political Rights (ICCPR) containing an identically worded
prohibition.[22] These international norms formed part of Philippine
law as generally accepted principles of international law [23] and
binding treaty obligation, respectively.[24]
Standards to Determine Impermissible Disproportionality
This Court has had occasion to devise standards of disproportionality
to set the threshold for the breach of the Cruel Punishment Clause.
Punishments whose extent “shock public sentiment and violate the
judgment of reasonable people”[25] or “[are] flagrantly and plainly
oppressive”[26] are considered violative of the Clause.[27] Other than
the cursory mention of these standards, however, we have made no
attempt to explore their parameters to turn them into workable
judicial tools to adjudicate claims of cruel punishment. Even if we
did, it would have been well-nigh impossible to draw the line
separating “cruel” from legitimate punishments simply because these
standards are overly broad and highly subjective. [28] As a result, they
ratchet the bar for the breach of the Clause to unreasonably high
levels. Unsurprisingly, no litigant has successfully mounted a
challenge against statutes for violation of the Clause. [29]
Impermissible disproportionality is better gauged by testing  Unrelated to its Purpose
punishments against the following alternative parameters: (1)
whether more serious crimes are equally or less severely punished;
or (2) whether the punishment reasonably advances the state interest
behind the penalty.[30] These parameters strike the proper balance of
providing practical tools of adjudication to weigh claims of cruel
punishment while at the same time affording Congress discretionary
leeway to craft penal statutes addressing societal evils.
Value-based, Maximum Penalty Calibration Under Article 315
Disproportionate to the Crime of Estafa
More Serious Crimes
Equally Punished as Estafa
Article 315 of the Code calibrates the maximum penalty for estafa on
an escalated basis once a threshold amount of fraud is crossed
(P22,000). The penalty escalates on a ratio of one year imprisonment
for every P10,000 fraud, with 20 years as ceiling.[31] Accordingly, 
for a fraud of P98,000, the trial court sentenced petitioner to a
maximum term of 15 years.
This punishment, however, is within the range of the penalty
imposable on petitioner under the Code had he “killed the [private
complainant] jeweler in an angry confrontation.” [32]The same penalty
would also be within the range prescribed by the Code had petitioner
kidnapped the private complainant and kept him detained for three
days.[33] By any objective standard of comparison, crimes resulting in
the deprivation of life or liberty are unquestionably more serious
than crimes resulting in the deprivation of property. [34] By imposing a
level of punishment for estafa equal to more serious crimes such as
homicide and kidnapping, Article 315’s system of calibrating the
maximum penalty based on the amount of fraud is plainly arbitrary
and disproportionate to the severity of the crime punished.
Maximum Penalty for Estafa
The felonies defined and penalized under Title 10, Book Two of the
Code, as amended, as crimes against property, including estafa under
Article 315,  are legislative measures safeguarding the right to
property of private individuals and the state.[35] The penalties of
imprisonment and/or fine attached to each crime are meant to deter
and incapacitate criminals from infringing such right. The Cruel
Punishment Clause ensures that the state interest is advanced without
sacrificing proportionality between the crime and punishment. In
short, the Clause acts as constitutional brake whenever Congress
enacts punishment whose severity is gratuitous, wholly unconnected
to the purpose of the law.
Of the more than two dozen crimes originally defined by Congress in
Title 10, Book Two of the Code,[36] only two crimes, estafa and theft,
consider the amount of the property involved to calibrate the
maximum range of the penalty. All the rest either impose penalties
irrespective of the amount of the property involved[37] or provide a
threshold amount based on the property involved for the imposition
of a straight (as opposed to calibrated) penalty. [38] Crucially, the
calibration does not take into account the real value of the peso.
Admittedly, Congress has ample discretion to fix penalties in the
Code according to its best light. At the time the Code took effect in
1932, when US$1.00 was equivalent to P1.00, the system of
calibrated penalty under Article 315 based on the amount
appropriated arguably stayed clear of the Cruel Punishment Clause.
After 82 years, however, when the real value of the peso has
depreciated substantially with the current rate of US$1.00 to P40.00,
an estafa of P142,000 in 1932, meriting a 20-year penalty, should
today require P5.6 million to merit a 20-year penalty. Put differently,
P142,000 in 1932 is worth only P3,550[39] today, which should merit
only a maximum penalty of six months and one day to  two years
and four months imprisonment.[40] The enormous disparity in the
values of fraud between these points in time (exceeding 100%) and
the imposition of the same level of maximum punishment in both
instances remove any semblance of reasonability in the manner by
which the punishment is derived and its connection to the purpose of
the law. The arbitrary differential treatment of estafa (and theft)
crosses the line separating the exercise of valid legislative discretion
and the Cruel Punishment Clause.
This conclusion stands notwithstanding our holding in People v.
Tongko[41] and Lim v. People[42] that the system of calculating the
maximum penalty under Article 315 does not offend the Cruel
Punishment Clause. Those cases involved paragraph 2(d) of Article
315, as amended by Presidential Decree No. 818 (PD 818),
[43]
 penalizing as estafa the issuance of unfunded or underfunded
checks (not paragraph 1(b), the provision violated by petitioner). Our
conclusion in those cases was grounded on the fact that criminalizing
the issuance of bouncing checks reasonably advances the state
interest behind the law, that is, ensuring the stability of commercial
and banking transactions.[44] Such state interest is not implicated
here. The clause in Article 315 petitioner violated, penalizing the
failure to return property delivered in trust for disposition, secures
the entirely different government interest of  protecting private
property. To consider Tongko and Lim as binding precedents,
precluding a different conclusion, is to expand their ratio
decidendi beyond the facts presented in those cases.
Penalty Imposable Under Article 315
The breach of the Cruel Punishment Clause  by Article 315’s system
of calculating the maximum penalty for estafa in excess of P22,000
means that only the minimum term of imprisonment provided under
Article 315 for such crime can be imposed on petitioner,
namely,  prision correccional in its maximum period. This level of
penalty is covered by the Indeterminate Sentence Law[45] which
renders the next lower penalty, namely, prision correccional in its
medium period, as the minimum of the sentence. [46] The entirety of
the sentence will be anywhere within the range of these maximum
and minimum penalties. Hence, petitioner’s term of imprisonment
should be modified to three (3) years, one (1) month and eleven (11)
days of prision correccional, as minimum, to four (4) years, nine (9)
months and eleven (11) days of prision correccional, as maximum.
The same range of penalty applies to all other persons found guilty
of violating Article 315. Thus, whether an estafa involves money or
property worth P22,000 or P1 million, the minimum term of
imprisonment under Article 315 – prision correccional in its
maximum period – will be imposed on the accused.
The penalty for the felony of syndicated estafa under Presidential
Decree No. 1689 (PD 1689) is, however, an altogether different
matter. PD 1689 amended Article 315 of the Code by adding a new
mode of committing estafa[47] and imposing the penalty of “life
imprisonment to death” or “reclusion temporal to reclusion
perpetua if the amount of the fraud exceeds P100,000.” Unlike
Article 315, PD 1689 does not calibrate the duration of the maximum
range of imprisonment on a fixed time-to-peso ratio (1 year for every
P10,000 in excess of P22,000), but rather provides a straight
maximum penalty of death or reclusion perpetua.  This places PD
1689 outside of the ambit of the proscription of the Cruel
Punishment Clause on the imposition of prison terms calibrated
based on the value of the money or property swindled, unadjusted to
inflation.
Effect of Ruling on Convicts
Serving Time under Article 315
This opinion relieves petitioner of the harsh effect of the penalty for
estafa under Article 315 by lowering the entire range of
imprisonment and monetary liability of petitioner or imposing only
the minimum range of imprisonment, respectively. It is akin to our
1956 ruling in People v. Hernandez[48] decriminalizing rebellion
complexed with ordinary crimes to the benefit not only of the
accused in that case but also of those already serving time for
rebellion complexed with other crimes.[49] Hernandez  and today’s
ruling amount to  laws favoring convicts, which, under Article 22 of
the Code, have retroactive effect.[50] Convicts benefitting from such
ruling and falling within the terms of Article 22 may invoke it in
their favor  and, if proper, avail of remedies to secure their release
from detention.
Conclusion not Precluded by Article 5 of the Code  the sentence imposed on petitioner Lito Corpuz to three (3) years,
Testing Article 315 against the Cruel Punishment Clause under the
standards espoused in this opinion does not make a dead letter law of
the second paragraph of Article 5 of the Code. Such provision,
mandating courts to recommend executive clemency –
when a strict enforcement of the provisions of th[e] Code would
result in the imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused by the
offense. (Emphasis supplied)
operates within the realm of criminal law, requiring fact-based
judicial evaluation on the degree of malice of the accused and the
injury sustained by the victim or his heirs. The Cruel Punishment
Clause, on the other hand, is the constitutional yardstick against
which penal statutes are measured using relevant standards  unrelated
to questions of criminal malice and injury. Far from overlapping, the
conclusions yielded by analyses under these two rules are distinct – a
penal statute may well avoid the taint of unconstitutionality under the
Clause but, applying such statute under peculiar set of facts, may 
justify a recommendation for the grant of clemency. [51]
Legislative Review of Article 315 and Related Provisions
Overdue
The constitutional infirmity not only of Article 315 but also of
related provisions in the Code calls for a comprehensive review by
Congress of such 82-year old legislation.[52] Pending such
congressional review, this Court should decline to enforce the
incremental penalty in Article 315 because such continued
enforcement of the incremental penalty violates the Cruel
Punishment Clause.
Accordingly, I vote to (1) GRANT the petition in part by modifying
one (1) month and eleven (11) days of prision correccional, as
minimum, to four (4) years, nine (9) months and eleven (11) days
of prision correccional, as maximum; and (2) DECLARE
UNCONSTITUTIONAL that portion of the first paragraph of
Article 315 of Act No. 3815, as amended, mandating the imposition
of maximum penalty based on the amount of the fraud exceeding
P22,000, for being violative of Section 19(1), Article III of the 1987
Constitution.
 “Swindling (estafa) - Any person who shall defraud another by any
[1]
of the means mentioned herein below shall be punished by:
Ist. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year
for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. x x x.” (Emphasis supplied)
 “Excessive fines shall not be imposed, nor cruel, degrading or
[2]
inhuman punishment inflicted. x x x.”
 Enacted on 16 December 1689.
[3]
  Thus, it is thought that “the principle it represents can be traced
[4]
back to the Magna Carta.” Trop v.  Dulles, 356 U.S. 86, 100 (1958).
 “Excessive bail shall not be required, nor excessive fines imposed,
[5]
nor cruel and unusual punishments inflicted.”
 The Philippine Bill of 1902 and the Autonomy Act of 1916.
[6]
 For an exhaustive historical treatment of the subject, see Furman
[7]
v. Georgia, 408 U.S. 238, 258-269 (1972) (Brennan, J., concurring).
 Deprivation of civil rights during service of sentence and post-
[8]
service perpetual deprivation of political rights.
 Weems v. US, 217 U.S. 349, 377 (1910).
[9]
[10]
 Id. at 373.
 In the sense that aggravating circumstances (qualifying a class of
[11]
criminals for the death penalty) and mitigating circumstances
(tempering sentences) must be legislated and carefully weighed.
See Furman v. Georgia, 408 U.S. 238 (1972) (Douglas, J.,
concurring) and progeny, e.g., Gregg v. Georgia, 428 U.S. 153
(1976) (plurality opinion); Buchanan v. Angelone, 522 U.S. 269
(1998).
 US v. Borromeo, 23 Phil. 279, 286 (1923). In Weems, the US
[12]
Supreme Court was more direct to the point: “[T]he provision of the
Philippine bill of rights, prohibiting the infliction of cruel and
unusual punishment, was taken from the Constitution of the United
States and must have the same meaning.” Weems v. US, supra note 9
at 367.
 US  v. Borromeo, 23 Phil. 279 (1923); People v.
[13]
Constantino, G.R. No. L-19290, 11 January 1923 (Unrep.); US v.
Pico, 18 Phil. 386 (1911). Pico and Constantino dwelt on the
question of extent (severity) of the punishment as criterion for
breaching the Clause. After reviewing extant relevant authorities we
observed in Borromeo:
In view of these authorities, and the fact that the legislature
invariably endeavors to apportion a penalty commensurate with the
offense, and that course, in the exercise of such discretion as is
conferred upon them in fixing penalties within minimum and
maximum degrees, adhere to the same rule, it seems to us that to
assert, when the question assumes the dignity of a constitutional
inquiry, that courts should not concern themselves with the relative
magnitude of the crime and the penalty, is wrong, both in logic and
in fact. A contrary view leads to the astounding result that it is
impossible to impose a cruel and unusual punishment so long as
none of the old and discarded modes of punishment are used; and
that there is no restriction upon the power of the legislative
department, for example, to prescribe the death penalty by hanging
for misdemeanor, and that the courts would be compelled to impose
the penalty. Yet such a punishment for such crime would be
considered extremely cruel and unusual by all right-minded people.
(US  v. Borromeo, supra at 289 [emphasis supplied]).
 “Excessive fines shall not be imposed, nor cruel and unusual
[14]
punishment inflicted.”
 People v. De la Cruz, 92 Phil. 906, 908 (1953); People v.
[15]
Estoista, 93 Phil. 647 (1953); People v. Dionisio, 131 Phil. 409
(1968). In his commentary on the 1935 Constitution, Dean Sinco
considered the Clause as “fobid[ding] punishments greatly
disproportionate to the offense.” V. SINCO, PHILIPPINE
POLITICAL LAW 674 (1954).
 Under Section 21, Article III (“Excessive fines shall not be
[16]
imposed, nor cruel or unusual punishment inflicted.”).
 Baylosis v. Chavez, 279 Phil. 448 (1991);  People v. Tongko, 353
[17]
Phil. 37 (1998); and Lim v. People, 438 Phil. 744 (2002) all
citing People v. Estoista, 93 Phil. 647 (1953) and People v. De la
Cruz, 92 Phil. 906, 908 (1953) (for Lim and Tongko). Although
these cases emphasize the “form only” school of thought, all relied
on pre-1973 jurisprudence recognizing disproportionality as ground
for breaching the Clause.
 Adherents of this school of thought insist that the Eighth
[18]
Amendment forbids only “those modes or acts of punishment that
had been considered cruel and unusual at the time that the Bill of
Rights was adopted” in 1791. Atkins v. Virginia, 536 U.S. 304,  339
(2002) (Scalia, J., dissenting). See also D. STRAUSS, THE LIVING
CONSTITUTION  (2010).
 Consistent with its interpretative approach in Weems, the US
[19]
Supreme Court considers the Eighth Amendment to “draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles, supra note 4 at 101.
 At the close of the 19th century, the Philippine revolutionary
[20]
government adopted the Malolos Constitution in 1899 which,
however, was short-lived and largely symbolic.
 Article 5 of the UDHR,  approved by the UN General Assembly
[21]
on 10 December 1948.
 Article 7 of the ICCPR, ratified by the Philippines on 23 October
[22]
1986.
 Although the UDHR is a non-binding instrument, this Court
[23]
treated the UDHR as embodying generally accepted principles of
international law, hence, forming part of the law of the land under
the 1935 Constitution’s Incorporation Clause (Section 3, Article II of
the 1935 Constitution, reiterated in Section  3, Article II of the 1973
Constitution). Mejoff v. Director of Prisons, 90 Phil. 70
(1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107
(1951); Chirskoff v. Commissioner of Immigration, 90 Phil. 256
(1951). The provision was retained in  the 1987 Constitution (Section
2, Article II).
 These norms are buttressed by the Convention Against Torture
[24]
and other Cruel, Inhuman, Degrading Treatment or Punishment
which entered into force on 26 June 1987 and to which the
Philippines acceded on 18 June 1986. The Convention binds states
parties to “take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its
jurisdiction” (Article 2) and “prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture” as defined in the
Convention (Article 16).

 Supra note 12 at 286. A variation sets the standard at
[25]
disproportionality which “shock[s] the moral sense of all reasonable
men as to what is right and proper under the circumstances.” (People
v. De la Cruz, 92 Phil. 906, 908 [1953], citing Am. Jur. 178) or
which “shock[s] the moral sense of the community” (People v.
Estoista, 93 Phil. 647, 655 [1953] [Res.] citing 24 C.J.S. 1187-
1188).
 People v. Estoista, 93 Phil. 647, 655 (1953) (Res.) citing 24 C.J.S.
[26]
1187-1188, cited in People v. Dionisio, 131 Phil. 409
(1968); Baylosis v. Chavez, 279 Phil. 448 (1991); People v.
Tongko, 353 Phil. 37 (1998) and Lim v. People, 438 Phil. 749 (2002).
 The following passage from Estoista, relying on the American
[27]
legal encyclopedia Corpus Juris Secundum, has become the template
for rejecting claims of cruel punishment using these standards:
It takes more than merely being harsh, excessive, out of proportion,
or severe for a penalty to be obnoxious to the Constitution. “The fact
that the punishment authorized by the statute is severe does not make
it cruel and unusual.” (24 C.J.S. 1187-1188.) Expressed in other
terms, it has been held that to come under the ban, the punishment
must be “flagrantly and plainly oppressive,” “wholly
disproportionate to the nature of the offense as to shock the moral
sense of the community.” (Idem.). Id.
 The standard of public outrage (“shock[ing to the] public
[28]
sentiment” or “shock[ing to the] moral sense of the community”) is
no different from that which “shocks the most fundamental instincts
of civilized man.” Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 473 [1947]) (Burton, J., dissenting) which “[invites] the danger
of subjective judgment x x x acute[ly],”  Furman v. Georgia, 408
U.S. 238, 279 (1972), (Brennan, J., concurring).
 The following typifies the analysis for rejecting claims of cruel
[29]
punishment using the standards laid down in Estoista and related
cases:
Settled is the rule that a punishment authorized by statute is not
cruel, degrading or disproportionate to the nature of the
offense unless it is flagrantly and plainly oppressive and wholly
disproportionate to the nature of the offense as to shock the moral
sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be obnoxious
to the Constitution. Based on this principle, the Court has
consistently overruled contentions of the defense that the penalty of
fine or imprisonment authorized by the statute involved is cruel and
degrading. Lim v. People, 438 Phil. 749, 754 (2002) (internal citation
omitted; emphasis supplied).
 Save for some modification, these are drawn from the
[30]
“principles” crafted by Mr. Justice William J. Brennan, Jr. in his
concurring opinion in Furman v. Georgia, 408 U.S. 238, 274-277,
279-282 (1972), to aid in the interpretation of the Eighth
Amendment.
 See note 1.
[31]
 Decision, pp. 12-13. Under Article 249 of the Code, homicide is
[32]
punishable by reclusion temporal which ranges from twelve (12)
years and one (1) day to twenty (20) years, with the medium term
ranging from fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months.
 Under Article 268 of the Code, Slight Illegal Detention is also
[33]
punishable by reclusion temporal.
 This merely reflects the ordering of rights under our constitutional
[34]
system with the right to life and liberty occupying a higher tier of
protection than the right to property (thus claims of infringement of
each right are subjected to different levels of scrutiny). See Ermita-
Malate Hotel & Motel Operations, Ass’n., Inc. v. Hon. City Mayor of
Manila, 127 Phil. 306, 324 (1967).
 Save for the crime of estafa by issuing underfunded or unfunded
[35]
checks which has been recognized as serving to ensure the stability
of commercial transactions and the banking system. People v.
Tongko, 353 Phil. 37, 44 (1998); Lim v. People, 438 Phil. 749, 755
(2002).
people’s confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the
banking system of the country.” [Citing the “Whereas” Clauses of
PD 818]. People v. Tongko, supra note 41 at 44 (emphasis supplied).
From Lim:

 The provisions relating to the crime of arson were  superseded by

[36]
Clearly, the increase in the penalty, far from being cruel and
Presidential Decree (PD) Nos. 1613 and 1744. degrading, was motivated by a laudable purpose, namely,
to effectuate the repression of an evil that undermines the country’s
 E.g. robbery and related crimes (Articles 294, 295, and 297);
[37]
commercial and economic growth, and to serve as a necessary
brigandage (Article 306) and arson and related crimes (Articles 320- precaution to deter people from issuing bouncing checks. The fact
323, as amended by PD 1613 and PD 1744). that PD 818 did not increase the amounts corresponding to the new
penalties only proves that the amount is immaterial and
 E.g. occupation of real property (Article 312); swindling of a
[38]
inconsequential. What the law sought to avert was the proliferation
minor (Article 317); removal, sale, or pledge of mortgaged property of estafa cases committed by means of bouncing checks. Taking into
(Article 319) and special cases of malicious mischief (Article 328). account the salutary purpose for which said law was decreed, we
conclude that PD 818 does not violate Section 19 of Article III of the
  P142,000÷40=P3,550.
[39]
Constitution. Lim v. People, supra note 42 at 755 (emphasis
supplied).
 Article 315, paragraph 3.
[40]

 Republic Act No. 4103, as amended.

[45]

 353 Phil. 37 (1998).

[41]

 Article 61(2), Code.

[46]

 438 Phil. 744 (2002).

[42]

 “[B]y a syndicate consisting of five or more persons formed with

[47]

 Increasing the maximum penalty for such estafa to 30 years.

[43]
the intention of carrying out” estafa involving “money contributed by
stockholders, or members of rural banks, cooperative, ‘samahang
 From Tongko:
[44]
nayon(s)’, or farmers association, or of funds solicited by
corporations/associations from the general public” (Section 1).
The legislature was not thoughtless in imposing severe penalties for
violation of par. 2(d) of Article 315 of the Revised Penal Code. The  People v. Hernandez, 99 Phil. 515 (1956); People v. Lava,  138
[48]

history of the law will show that the severe penalties were intended Phil. 77 (1969).
to stop the upsurge of swindling by issuance of bouncing checks. It
was felt that unless aborted, this kind of estafa “. . . would erode the  Gumabon v. Director of the Bureau of Prisons, 147 Phil. 362
[49]
(1971).
 “Retroactive effect of penal laws. - Penal laws shall have a
[50]
retroactive effect  insofar as they favor the persons guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of
such laws a final sentence has been pronounced and the convict is
serving the same.”
 The Court made such recommendation in People v. Monleon (165
[51]
Phil. 863 [1976]) where the accused, while inebriated, unintentionally
killed his wife in the course of disciplining their child. We explained:
“[C]onsidering that Monleon had no intent to kill his wife and that
her death might have been hastened by lack of appropriate medical
attendance or her weak constitution, the penalty of reclusion
perpetua appears to be excessive. A strict enforcement of the
provisions of the Penal Code means the imposition of a draconian
penalty on Monleon.” Id. at 870. Under Article 246 of the Code,
parricide is punishable by reclusion perpetua to death.
 The Code was approved on 8 December 1930 but took effect on 1
[52]
January 1932.
CONCURRING OPINION
BRION, J.:
I agree with the ponencia 's conclusion that Lito Corpuz is guilty of
the crime of Estafa as the facts and the evidence sufficiently
established his guilt beyond reasonable doubt.
I also support the majority's decision not to "judicially interpret" th
penalties imposed under Article 217 (Malversation of Public Funds
or Property), Articles 299-303 (Robbery), Articles 308-309 (Simple
Theft), Article 310 (Qualified Theft), Articles 315-318 (Estafa and
other forms of Swindling), Articles 320-325 (Arson), and Articles
327-329 (Mischiefs) of the Revised Penal Code (RPC), by adjusting,
for inflation, the value of the money or property (subject of the
crime) to its 1930 value.
My reasons for supporting the ponencia are as follows:
First, the Court has no jurisdiction to determine the propriety of
imposing the penalties prescribed under the other crimes in the RPC.
Second, modifYing the penalties, as several of my esteemed
colleagues have proposed, is not judicial interpretation that simply
looks at the letter and spirit of the law; it is judicial legislation that
unconstitutionally (and thus, illegally) breached the doctrine of
separation of powers.
Third, the present day application of the 1930 values will not result
in the denial of Corpuz's right to equal protection of the law.
Fourth, the constitutionally and legally permissible solution to the
perceived disparity between the prescribed penalty and the crime in
light of the present values of money and property is the grant, by the
President of the Philippines, of executive clemency through pardon
or parole.
Fifth, the minority's position can, in effect, lead to repercussions
that could potentially destabilize the application of our penal
laws and jurisprudence, as well as further clog the Court's already
congested dockets.
Lastly, I cannot agree with the expressed opinion that the
incremental penalty imposed on estafa is unconstitutional for being a
cruel and unusual punishment; like the rest of the majority, I believe
that no such effect occurs under the present law and its application.
I. The Court has no jurisdiction to determine the propriety of
imposing the penalties prescribed under other crimes in the RPC.
The dissenting opinion of Justice Abad, as supported by several other
justices, sought to adjust for inflation the amounts involved in estafa;
by so doing, he also sought to "judicially interpret" the subject matter
of the crimes of malversation, theft, qualified theft, arson and
mischiefs.
In my view, what they propose to do involves an undue and
unwarranted invocation of the Court's judicial power- an act that
cannot be done without violating the due process rights of the
Republic. Notably, the Republic focused solely and was heard only
on the matter of estafa. In fact, the present case is only about estafa,
not any other crime. To touch these other crimes in the present case
likewise involves acts of policy determination on the substance of
the law by the Judiciary - a violation of the highest order of the limits
imposed on us by the Constitution.
I am not unaware that an appeal in criminal cases throws the case
wide open for review, and allows the reviewing tribunal the power to
correct errors or to reverse the trial court's decisions on the grounds
other than those raised by the parties as errors. 1 In reviewing
criminal cases, we recognize our duty to correct errors as may be
found in the judgment appealed regardless of whether they had been
made the subject of assignments of error or not.
This discretion, however, is limited to situations where the Court
intends to correct the trial court's errors in applying the law and
appreciating the facts. A quick survey of jurisprudence shows that
this includes re-evaluating factual questions presented before the trial
court,[2] weighing the credibility of witnesses and other pieces of
evidence presented before the trial court, [3] or applying the proper
penalty.[4]
Thus, at most, the Supreme Court's wide discretion in reviewing
criminal cases allows it to motu proprio provide a proper
interpretation of the penal law being applied. This discretion,
however, does not extend to the power to adjust the penalty defined
in the law, based on the monetary value of the property involved in
the crime of estafa.
More than this, the Court's discretion does not allow it to similarly
adjust the penalties defined in other crimes, similarly based on the
monetary values of the property involved in these other crimes, as
these other crimes are not involved in the present case. These
crimes and their penalties have neither been adjudicated upon by the
trial court nor by the CA; neither is the "judicial interpretation" of
their penalties necessary to determine whether Corpuz committed the
crime of estafa in the present case.
Assuming, for the sake of argument, the validity of Justice Abad's
arguments regarding the disproportionality of the penalties defined in
these crimes (as the intrinsic value of the money in properties
involved have significantly dropped), we still cannot ipso facto apply
the adjustments he seeks in the present estafa case, to the other
crimes. The proportionality issue in estafa is different from the
proportionality issue in these other crimes, as each crime is different
from another.
Let me point out that there are considerations in determining whether
a penalty is proportional to crimes other than the monetary value of
the property involved. The perpetration of fraud, the key element in
estafa, is not present in theft or arson, while the abuse of public
office is a unique key element in malversation. We cannot make a
uniform ruling adjusting the amounts involved in these crimes
simply based on inflation and without considering the other factors
that Congress considered in imposing the values of the property
involved in these crimes. This conundrum again shows that the
judicial interpretation espoused by the minority is actually a judicial
usurpation of Congress' prerogative to define crimes and to
determine their penalties.
II. The enduring constitutional and jurisprudential imperative
upholding the separation of powers completely abhors any
unwarranted intrusion and impermissible usurpation of the
authority and functions of a co-equal branch
A characteristic and cardinal principle that governs our constitutional
system is the separation of powers.[5] The Constitution does not
expressly provide for the principle of separation of powers. Instead,
it divides the governmental powers among the three branches - the
legislative, the executive and the judiciary. Under this framework,
the Constitution confers on the Legislature the duty to make the law
(and/or alter and repeal it), on the Executive the duty to execute the
law, and on the Judiciary the duty to construe and apply the law. [6]
Underlying the doctrine of separation of powers is the general
proposition that the whole power of one department should not be
exercised by the same hands that possess the whole power of the
other departments.[7] Within their respective spheres of influence,
each department is supreme and the exercise of its powers to the full
extent cannot be questioned by another department. Outside of their
defined spheres of action, none of the great governmental
departments has any power, and nor may any of them validly
exercise the powers conferred upon the others. [8]
Section 1, paragraph 1, Article VIII of the Constitution states that
"judicial power shall be vested in one Supreme Court and such lower
courts as may be established by law." Simply stated, what the
Constitution confers on the Court is only "judicial power" and it is
this judicial power that serves as the measure of the permissible
reach of the Court's action.[9] In short, the Judiciary can neither make
the law nor execute it, as its power is strictly confined to the law's
interpretation and application, i.e., to what is aptly termed 'judicial"
power.
II.A. Judicial power; its scope and limitations
Section 1, paragraph 2, Article VIII of the Constitution states that
judicial power "includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable," as well as to "determine whether or not there has
been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government."
Traditionally, judicial power has been defined as "the right to
determine actual controversies arising between adverse litigants,
duly instituted in courts of proper jurisdiction."[10] It is "the authority
to settle justiciable controversies or disputes involving rights that are
enforceable and demandable before the courts of justice or the
redress of wrongs for violation of such rights."[11]
In this light, no court can exercise judicial power unless real parties
come before it for the settlement of actual controversy and unless the
controversy is of the nature that can be settled in a manner that binds
the parties through the application of existing laws. [12] This
traditional concept of judicial power, as the application of law to
actual controversies, reflects the constitutional imperative of
upholding the principle of separation of powers, such that the
Judiciary has no power to entertain litigations involving the
legality, wisdom, or the propriety of the conduct of the
Executive; neither has it the power to enlarge, alter or repeal
laws or to question the wisdom, propriety, appropriateness,
necessity, policy or expediency of the laws.[13]
While the Constitution has now extended the scope of judicial power
beyond the mere application of law and the settling of disputes (as it
now includes the duty to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government), this
expanded scope does not still permit any inquiry into the conduct or
act of either of the executive or the legislative branch other than to
determine whether either branch violated the Constitution or gravely
abused its discretion in a manner amounting to lack or excess of
jurisdiction.
II.B. The power to define crimes and their
penalties lies in the legislature as an
imperative of the principle of separation  presume that a legislature says in a statute what it means and means
of powers
On the legislature's exclusive domain, through lawmaking, lies the
authority to define what constitutes a particular crime in this
jurisdiction. It is the legislature, as representative of the sovereign
people, that determines which acts or combination of acts is criminal
and what the ordained punishments shall be.[14] Judicial interpretation
of penal laws should be aligned with the evident legislative intent, as
expressed primarily in the language of the law as it defines the crime.
[15]
As the Constitution vests the power to enact laws on the legislature,
the courts cannot arrogate the power to enlarge the scope of the
crime, introduce matters that the legislature clearly did not intend,
redefine a crime in a manner that does not hew to the statutory
language,[16] or modify the penalty to conform to the courts' notion
(out of the innumerable number of notions) of justice and fairness. A
becoming regard for the prerogative of Congress in defining
crimes/felonies should prevent the Court from making any broad
interpretation of penal laws where a "narrow interpretation" is
appropriate.[17] "The Court must take heed to language, legislative
history and purpose, in order to strictly determine the wrath and
breath of the conduct the law forbids."[18]
II.C. "Plain meaning rule" in statutory
construction should be applied in reading
Article 315 ofthe RPC
The cardinal canon in statutory construction - the plain meaning rule
or verba legis - requires that "the meaning of a statute should, in the
first instance, be sought in the language in which the act is framed; if
the language is plain, the sole function of the courts is to enforce it
according to its terms."[19] In interpreting any statute in the exercise
of its judicial power of applying the law, the Court should always
tum to this cardinal canon before all others. "Courts should always
in a statute what it says there,"[20] and that the legislature knows "the
meaning of the words, to have used them advisedly, and to have
expressed the intent by use of such words as are found in the
statute."[21]
Thus, when the law is clear and free from any doubt or ambiguity,
[22]
 and does not yield absurd and unworkable results[23] the duty of
interpretation, more so of construction, does not arise; [24] the Court
should resort to the canons of statutory construction only when the
statute is ambiguous[25]
Interpretation, as understood in the rules of statutory construction,
refers to the art of finding out the true sense of any form of words, or
the sense which their author intended to convey. [26] Construction, on
the other hand, refers to the art of drawing conclusions from matters
beyond the direct expressions of text, from elements known from and
given in the text, or conclusions that are in spirit, but not within the
text,[27] where the intention is rendered doubtful, among others,
because the given case is not explicitly provided for in the law [28] or
because the words used are obscure or susceptible to numerous
interpretations. Both these two terms, however, have no place in
the present case as the meaning of the penalties imposed is clear
and needs neither construction nor interpretation.
II.D. The ''plain meaning rule" and the
principle of separation of powers 
prevent this Court from modifying, 
by adjusting for inflation, the penalties
under Article 315 of the RPC
The language of the penalty clauses of Article 315 of the RPC is
plain and clear; no reservation, condition or qualification,
particularly on the need for adjustment for inflation, can be read
from the law, whether by express provision or by implication. The
clear legislative intention to penalize estafa according to the "amount
of fraud" as enumerated in the law, therefore, should be deemed
complete - Article 315 embodies all that the legislature intended
when the law was crafted.
As the words of Article 315 are clear, the Court cannot and should
not add to or alter them to accomplish a purpose that does not
appear on the face of the law or from legislative history,[29] i.e., to
remedy the perceived grossly unfair practice of continuing to impose
on persons found guilty of estafa the penalties that the RPC
Commission pegged on the value of money and property in 1930.
Notably, in his approach in the present case, Justice Abad labors
under the presumption that the RPC Commission intended that the
penalties under Article 315 of the RPC should adopt and reflect the
values of money and property prevailing at the time of the
commission of the crime; hence, his position that the "amount of
fraud" should be adjusted for inflation.
I find this approach and the resulting position manifestly flawed;
Justice Abad effectively posits that the "amount of fraud" as the basis
of the penalty will significantly vary at each instance as this will
depend on such factors as the kind or type of the thing or property
subject of the crime, and its corresponding monetary value at the
time of the commission of the crime. The monetary value, in tum,
will depend on several variables affecting the economy. To my
mind, these are clearly matters of fact and policy determination that
are far beyond the scope of judicial power.
In fact, a review of several amendatory statutes of Article 315 of the
RPC reveals a legislative intent contrary to Justice Abad's
proposition that the RPC Commission intended that the "amount of
fraud" as basis for the penalties should account for the inflation.
In point are the following: (1) Presidential Decree No. 818 (enacted
in October 22, 1975) increased the penalties in cases of estafa
resulting from bouncing checks under Article 315(2)(d); and (2)
Presidential Decree No. 1689 (enacted on April 6, 1980) increased
the penalty for certain forms of estafa under Articles 315 and 316.
These statutes increased the penalties for estafa under certain
conditions despite the then already declining monetary value on
account of inflation.
Arguably, the Court had in the past (as in the cases cited by Justice
Abad) resorted to interpretation of monetary values to cope with
inflation. These instances, however, concerned awards of civil
liability and moral damages for death.[30] These cases involved civil
damages awards that are in stark contrast with the penalty issue that
faces this Court in the present petition. In fact, the Historical Notes
of the RPC Commission[31] shows the law's concern for the heirs of
the deceased (victim) as the force that impelled the legislature to
increase the civil indemnity by statute;32 the Court simply took
judicial notice of this concern in interpreting the monetary values in
the cited cases.
Moreover, Justice Abad's presumption patently deviates from the
rule of progressive interpretation that "extends by construction the
application of a statute to all subjects or conditions within its general
purpose or scope that come into existence subsequent to its
passage[.]"[33] The rule requires that "a word of general signification
employed in a statute should be construed, in the absence of
legislative intent to the contrary, to comprehend not only peculiar
conditions obtaining at the time of its enactment but those that may
normally arise after its approval as well."[34]

Thus, Article 315 of the RPC should be understood as embracing all
things and property that may be subject of the crime of estafa
regardless of the changes in their monetary value, and that the
"amount of fraud" as basis for the penalty (and as enumerated under
Article 315) should be applied without reference to these changes.
Then, too, Justice Abad's position departs from the theory
of originalism that he used as supporting argument.
Originalism is generally employed in relation with the Constitution
and has its roots in the "original" intent of the framers of the
Constitution. It is a theory or a framework of principles used in
interpreting and understanding the texts of the Constitution. It is
premised on the idea that the original meaning of the Constitution is
relatively fixed, and the originalist enterprise is fundamentally
committed to discerning the fixed meaning the framers gave to the
Constitution.[35]
Originalism, as a theory of constitutional interpretation, has so far
evolved into numerous versions, the more common of which
are original understanding and originaI intent.[36]
Originalism as original understanding seeks the meaning of the
words themselves as understood at the time,[37] or the meaning of the
words to the society that adopted it - regardless of what the framers
might secretly have intended.[38] In contrast, originalism as original
intent seeks the meaning of the words according to what the framers
had in mind[39] or the meaning that the framers attached to the words
that they employed in the Constitution.[40]
As a theory of constitutional interpretation, I submit that originalism
cannot properly be applied to interpret and modify Article 315 of the
RPC because this is a statute, not a constitutional provision to which
the theory of originalism generally applies.
Granting that originalism can be permissibly adopted to interpret
statutes, the theory - whether viewed as original understanding or
original intent - commands that Article 315 be read and interpreted
according to its fixed and original meaning. Thus, in the same
manner that the rule of progressive interpretation bars reference to
the changes in the monetary values of the things and property subject
of the crime, under the theory of originalism, the "amount of fraud"
as basis for the penalty (as enumerated under Article 315), should
likewise be applied without reference to the changes in the monetary
values.
Accordingly, I find Justice Abad's proposition in this case to be
improper and inappropriate because: (1) the modification of the
penalty transgressed the clear intent of the legislature as the
adjustment for inflation is not supported by the letter of Article 315
of the RPC nor by its intent; (2) in adjusting for inflation the
monetary values to modify the penalties under Article 315, the
Court resorted to construction that the law and the circumstances
clearly did not require; and (3) in modifying the penalty by
construction, the Court manifestly usurped, by judicial
legislation, the power that rightfully belongs to the legislature.
III. The application of the penalties prescribed under Article 315
of the RPC, as written, would not violate Corpuz's right to equal
protection of the law
Section 1, Article III of the 1987 Constitution pertinently provides:
"nor shall any person be denied the equal protection of the
laws." The equal protection clause means that no person or class of
persons shall be deprived of the same protection of laws enjoyed by
other persons or other classes in the same place in like
circumstances.41 It demands that all persons or things similarly
situated should be treated alike, both as to the rights conferred and
responsibilities imposed.[42]
The equal protection, however, does not demand absolute equality
under all circumstances. The protection recognizes that persons are
not born equal and have varying handicaps that society has no power
to abolish.[43]  Thus, the equal protection clause permits reasonable
classifications provided that the classification: (1) rests on substantial
distinctions; (2) is germane to the purpose of the law; (3) is not
limited to existing conditions only; and (4) applies equally to all
members of the same class.[44]
The application of the penalties under Article 315 of the RPC, as
written, to the present situation does not violate Corpuz's right to the
equal protection of the law. The circumstances prevailing when the
RPC Commission fixed the penalties for estafa in 1930, vis-a-vis the
circumstances presently obtaining, hardly differ, and the
considerations that impelled the RPC Commission in fixing the mode
and duration of these penalties persist and continue to justifY their
application to the present conditions.
The key element in estafa is the fraudulent act committed that has
caused harm to others. Estafa penalizes the fraudulent act. I
submit that there has been no change in the way the RPC defines
fraud and, hence, there should be no reason for a change in the
way a fraudulent act is penalized.
A fraud committed in the 1930s should be punished in the same
manner as a fraud committed in the present day. That the
consequences of the fraudulent act constituted the basis for
determining the gradation of penalties was a policy decision that
Congress had the prerogative to make. This included the value
behind each threshold and its corresponding penalty. What was true
then is still true today.
Thus, the disparity between the monetary values of things and
property in the 1930s and the prevailing monetary values of like
things and property do not amount to distinctions so substantial that
they would require this Court to treat and classifY Corpuz differently
from persons who committed estafa in 1930.
In fact, the converse proposition, i.e., to treat Corpuz and others who
will, from here on, commit the crime of estafa differently from those
who committed the same crime in the 1930s up to and prior to the
decision in this case, by modifYing the penalty according to what it
perceived as the correct inflation rate, will inevitably violate the
constitutional right of the latter group of persons to the equal
protection of the law.
This modification of the penalty effectively dictates a
classification that does not rest on substantial distinctions; is
irrelevant to the purpose of the law punishing estafa,i.e., to
punish and discourage dishonesty and unfaithfulness in the
administration or care of money, goods or other personal property
received for the purpose;[45] and applies only to those who commit
the crime subsequent to the decision.
IV. The grant, by the President of the Philippines, of executive
clemency through pardon or parole, when warranted, would
sufficiently address the perceived disparity, in the context of the
present values of money and property, between the prescribed
penalty and the crime committed
I further submit that the law, in its wisdom, already provides a
constitutionally and legally permissible solution to what Justice
Abad perceived as the "grossly unfair practice of continuing to
impose on persons found guilty of certain crimes the penalties [that
had been] pegged on the value of money and property more than 80
years ago in 1930."
These solutions are the exercise, by the President of the Philippines
of his clemency powers under Section 19, Article VIII of the
Constitution,46 and the exercise by this Court of its recommending
power under Article 5, paragraph 2, of the RPC.
Article 5, paragraph 2, of the RPC states that when the strict
enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, considering the degree of
malice and the injury caused by the offense, "the [C]ourt shall submit
to the Chief Executive, through the Department of Justice, such
statement as may be deemed proper[.]"
The factual and legal conditions that some members of this Court
feel badly about can be addressed through the exercise of this
recommendatory power. This course of action may adequately
address whatever perceived disparity there might be, created by
inflation, between the crime and the penalty while preserving and
upholding, at the same time, the cardinal principle of the separation
of powers. The Court is not likewise barred from calling the attention
of Congress to the perceived disparity so that any problem there can
be addressed through legislation.
In sum, even granting arguendo that the penalty the CA imposed on
Corpuz is "grossly unfair" from the economic and pragmatic point of
view (as Justice Abad has carefully crafted), the solution to this
"gross unfairness" is not for this Court, by itself, to provide. Article
315 of the RPC is plain and unambiguous and Corpuz's case falls
clearly within its provisions. Hence, under the circumstances and
within the context of this case, the Court's duty is simply to apply the
law. Resorting to judicial legislation by construction encroaches into
the exclusive domain of the legislature a course that clearly violated
the constitutional separation of powers principle.
V. The effect of Justice Abad's '"judicial interpretation" could
have destabilizing repercussions on the application of our penal
laws and jurisprudence. It will as well further clog the Court's
already congested dockets.
I believe that Justice Abad's proposition, while grounded on noble
intentions, could destabilize the application of our penal laws. I
submit the following practical considerations against it:
First, Justice Abad's proposal, in effect, postulates that the monetary
value of the money and property subject of the crime should be kept
at its value at the time the crime was legislated. This prompted his
demand to adjust the present day values of the amounts involved in
distinguishing the penalties for estafa, qualified theft, malversation,
among others, to keep their values at the 1930's level. This argument
applies not just to the crimes it has enumerated, but to other crimes
which use the value of the property involved in the criminal act as an
element of the crime, or as a standard for determining the penalty of
the crime.
Examples of these offenses include plunder[47] (which includes as an
element of the crime the acquisition of at least PSO million in ill-
gotten wealth) and the failure by a covered institution to report
covered transactions as defined in the Anti-Money Laundering Act.
[48]
Should the amounts involved in these crimes be automatically
adjusted now, to keep them within their value at the time the crimes
were defined and penalized? Both the crimes of plunder and money-
laundering, for instance, are of relatively recent enactment. The Act
Defining the Crime of Plunder was passed in 1991 and the Anti-
Money Laundering Act in 2001.
When do we adjust the value of these amounts so that they would
remain in keeping with the intent of Congress at the time of its
enactment? Do we adjust these for inflation every year, from the
time of enactment, or after ten, or twenty years when the value of the
peso has significantly changed?
The lack of any specific answer to these questions reaffirms that the
prerogative to value the money or property involved in a crime lies
with Congress and is not for the courts to make through "judicial
interpretation."
Second, the proposition would open the floodgates for habeas
corpus petitions for the adjustment of the penalties imposed on
convicts now in prison for estafa. These petitions would be based on
equal protection grounds, swamping the courts with pleas for the
reduction of sentences. Significantly, in undertaking adjustments, it
would be inaccurate to apply the 1:100 adjustment ratio that Justice
Abad uses as base because these convicts committed their respective
crimes in different years. Effectively, all these petitions would be
resolved on a case-to-case basis as proper proportionality would have
to be determined based on inflation in these different years.
VI. The penalties in estafa do not violate the constitutional
prohibition against cruel, degrading or inhuman punishment
I cannot agree that the disproportionality in terms of the length of
imprisonment and the amount involved in the estafa is within the
contemplation of the constitutional prohibition against cruel,
degrading or inhuman punishments.
First, I submit that the issue of a statute's constitutionality, including
those of criminal statutes, should be raised at the earliest possible
opportunity. The ponencia 's summation of the case's antecedents
does not show that the constitutionality of the estafa's penalty had
been raised in the trial court, or in the CA, and even in the present
petition in the Supreme Court.
As I earlier discussed, we have a wide latitude of discretion in
reviewing criminal cases, especially in comparison to our approach
in reviewing the civil and labor cases appealed before us. But this
wide latitude, to my mind, does not authorize us to disregard the
requirements of constitutional litigation.
Even assuming that the Court may, on its own, raise the issue of
constitutionality of the penalty of estafa, the principle of stare
decisis bars us from relitigating an issue that has already been
decided.
The Court has had, on two occasions, upheld the constitutionality of
the penalty imposed on estafa. In Lim v. People,[49] the Court en bane
reiterated a prior ruling by the Court's Second Division in People v.
Tongko,[50] which ruled that the increase in the penalty for estafa,
committed through bouncing checks under Presidential Decree (PD)
No. 818, does not violate the constitutional prohibition against cruel,
degrading or inhuman punishment.
The petitioners in Lim argued that PD No. 818 is a cruel, degrading,
or inhuman punishment for the following reasons: first, the penalty
of reclusion perpetua under PD No. 818 for estafa involving the
amount of P365,750.00 is too disproportionate to the crime it
punishes; and second, the penalties for estafa through false pretenses
or fraudulent acts (committed through bouncing checks) increased
without a corresponding increase in the original amounts for estafa
defined in the RPC, when these amounts have become negligible and
insignificant compared to the present value of the peso.
The Court in Lim held that the increase in penalties provided by PD
No. 818 is neither the cruel nor degrading punishment that the
Constitution contemplates. Affirming this ruling in Tongko, the
Court held that "the prohibition of cruel and unusual punishment is
generally aimed at the form or character of the punishment rather
than its severity in respect of duration or amount[.]"[51]
According to Lim v. People,[52] "It takes more than merely being
harsh, excessive, out of proportion or severe for a penalty to be
obnoxious to the Constitution." The impugned penalty must be
"flagrantly and plainly oppressive and wholly disproportionate to the
nature of the offense as to shock the moral sense of the
community."[53]
The Court also noted that while PD No. 818 makes the penalties for
estafa more severe, this severity alone does not make it the cruel or
degrading punishment that the Constitution prohibits. The Court
observed that the increase of the penalties is not without justification:
the increase in penalty was intended to repress the crime of
swindling through bouncing checks, as it erodes the people's
confidence in using negotiable instruments and results in the
"retardation of trade and commerce and the undermining of the
banking system of the country."[54]
The present case involves arguments similar to those
the Lim petitioners presented, and I find that no basis exists for the
Court to deviate from its earlier ruling. Notably, the Court en
banc arrived at this ruling without any reservations or dissenting
opinions.
I submit that the Court should respect and recognize the principle
of stare decisis in this case, as Lim stands as precedent against the
arguments raised in the current case. They both involve the same
issues and arguments; the penalty imposed by PD No. 818, which
was contested in Lim and Tongko, was even higher than the penalties
contested in the current case (which involves estafa without the
qualifYing circumstance of having been committed through
bouncing checks).
These considerations, to my mind, effectively refute the arguments
regarding the severity and disproportionality of the penalties under
estafa presented in the current case. If we have twice respected and
recognized the legislative's prerogative to increase the penalty of
estafa committed through PD No. 818, why should we now deny
them this prerogative and assert for ourselves the authority to
determine the penalty of estafa itself?
Neither is a perceived disproportionality in the penalties and its
comparison with the penalties of other crimes sufficient to establish
the questioned penalty as cruel or degrading.
In Baylosis v. Hon. Chavez, Jr.,[55] the Court en banc upheld the
constitutionality of Section 1 of PD No. 1866, which penalizes
with reclusion perpetua "any person who shall unlawfully
manufacturer, deal in, acquire, dispose, or possess any firearm," "in
furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion." The petitioners
in Baylosis questioned the constitutionality of the penalty, pointing
out, among other arguments, that the crime of possessing a firearm in
furtherance of rebellion is even more severe than the crime of
rebellion itself.
The Court in Baylosis interestingly ruled that the difference in the
penalty between PD No. 1866 and the RPC does not necessarily
establish that the heavier penalty under PD No. 1866 is excessive,
disproportionate, or cruel or unusual. The Court noted that it could
be argued the other way around - that the penalty of the crime of
rebellion is too light; and that the remedy for this situation is through
law, and not judicial interpretation.
Thus, Baylosis established that in determining the severity and
disproportionality of a penalty, the Court should look only at the
crime and penalty in question and avoid its comparison with other
crimes. And in determining whether a penalty is wholly
disproportional to the crime it punishes (so that it shocks the
community's moral standards), we must examine whether the penalty
imposed is justified by the evil sought to be prevented by Congress
in penalizing the crime.
In this case, the Solicitor General has adequately provided the reason
for the penalties behind the estafa, i.e., to protect and encourage the
growth of commerce in the country and to protect the public from
fraud. This reason, to my mind, is sufficient to justify the penalties
for estafa. That the amount taken from the private injured party has
grown negligible through inflation does not ipso facto make the
penalty wholly disproportional. In determining whether a penalty is
cruel or unusual, we have considered not just the amount taken from
the private injured party, but also considered the crime's impact on
national policy and order.[56] It cannot be gainsaid that the
perpetuation of fraud adversely impacts on the public's confidence in
our financial system and hinders as well the growth of commerce.  Aradillos v. Court of Appeals, 464 Phil. 650, 663 (2004).
[3]

As a final point, I note that the 1987 Constitution has changed the  Quemuel v. CA, et al., 130 Phil. 33, 35-36 (1968).
[4]

language of the prohibition against cruel and unusual punishments

under the 1935 and 1973 Constitutions to "cruel, degrading or  See I Defensor-Santiago, M., Constitutional Law, Text and Cases
[5]

inhuman." This change of wording is not without reason - it was (2000), p. 163.
designed to give Congress more leeway in formulating the penalties
it deems fit to the crimes that it may decide to penalize in the future.  Id. at 169-170, citing US. v. Ang Tang Ho, 43 Phil. 1 (1922).
[6]

As explained by Constitutional Commissioner Fr. Joaquin Bernas  Id. at I64.

[7]

S.J., who sponsored the draft Bill of Rights, the word unusual was
replaced with the words "degrading or inhuman" because Congress,  Id. at 194, citing Angara v. Electoral Commission, 63 Phil. 139
[8]

in the future, may create a penalty not yet known or imposed; and the (1936).
fact of its novelty should not be a ground to question its
constitutionality.[57]  Bernas, S. J., The 1987 Constitution ofthe Republic of the
[9]

Philippines: A Commentary, (2009), p. 946.

I submit that we, as interpreters and enforcers of the Constitution,
should not go against the general spirit and intent of the Constitution  Bernas, S.J., The I 987 Constitution of the Republic of the
[10]

to recognize the prerogative of Congress to create penalties. Philippines, (2009), p. 946, quoting Muskrat v. United States, 219
Immediately equating disproportionality and severity to a cruel, U.S. 346 (1911 ).
degrading punishment unduly limits this prerogative, as it would
open the floodgates for the review of penalties on the mere [11]
 Id. at 946, quoting Lopez v. Roxas, 17 SCRA 756, 761 (1966).
contention or belief that the imprisonment imposed is too long or that
the fines assessed are too high. These, to me, are policy questions [12]
 Id. at 946-947.
that should be best addressed by the political branches of
government, not by the Supreme Court.  See I Defensor-Santiago, M., Constitutional Law, Text and Cases
[13]

(2000), pp. 586-587.

In these lights, I fully concur with and join the ponencia of Justice
Peralta.  See Valenzuela v. People, 552 Phil. 381, 414 (2007); and Laurel
[14]

v. Judge Abrogar, 518 Phil. 409, 432-433 (2006).

[15]
 Valenzuela v. People, supra, at 414.
 People of the Philippines v. Salva, 424 Phil. 63, 75 (2002).
[1]
[16]
 Id. at 414-415.
 Obosa v. CA, 334 Phil. 253, 272 (1997).
[2]
[17]
 Id. at 415.

 Laurel v. Judge Abrogar, supra note 14, at 433, citing Dowling v.
[18]
United States, 473 U.S. 207 (1985); and Valenzuela v. People, supra
note 14, at 415.
 Caminetti v. United States, 242 U.S. 470 (1917).
[19]
 Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, (1992);
[20]
and Insular Bank of Asia and America Employees' Union (IBAAEU)
v. Hon. lnciong, etc., et al., 217 Phil. 629, 642 643 (1984).
 Philippine Amusement and Gaming Corporation (PAGCOR) v.
[21]
Philippine Gaming Jurisdiction, Incorporated (PEJJ), G.R. No.
177333, April24, 2009, 586 SCRA 658, 665.
 Cebu Portland Cement Company v. Municipality of Naga, Cebu,
[22]
et al., 133 Phil. 695,699 (1968).
 Dennis B. Funa, Canons of Statutory Construction (2011), p. 215,
[23]
citing CONN. GEN. STAT. Par. 1-2z, 2007.
 See Catiis v. Court of Appeals (17th Division), 517 Phil. 294, 303
[24]
304 (2006).
 Dennis B. Funa, Canons of Statutory Construction (2011), pp.
[25]
214-215, citing CONN. GEN. STAT. Par. 1-2z, 2007.
 ld. at 4-5, citing Henry Campbell Black, Handbook on the
[26]
Construction and Interpretation of the Laws (1896). See also Black's
Law Dictionary (Fifth edition), p. 734.
 Dennis B. Funa, Canons of Statutory Construction (2011), pp. 4-
[27]
5, citing Henry Campbell Black, Handbook on the Construction and
Interpretation of the Laws (1896). See also Black's Law Dictionary
(Fifth edition), p. 283.
 Caltex (Philippines), Inc. v. Palomar, No. L-19650, September
[28]
29, 1966, 18 SCRA 247, 256.
 See Burden v. Snowden, 2 Cal. 4th 556 (1992).
[29]
 Justice Abad cited the following cases to support its
[30]
position: People v. Amanses, 80 Phil. 424, 435 (1948); M Ruiz
Highway Transit, Inc. v. Court of Appeals, 120 Phil. 102, 106
(1964); People v. Pantoja, 134 Phil. 453, 458 (1968); People v. Dela
Fuente, 211 Phil. 650, 656 (1983); People v. Anod, G.R. No. 186420,
August 25, 2009, 597 SCRA 205, 213; and People v. Tubongbanua,
532 Phil. 434, 454 (2006).
Note that all of these cases involve the award of civil indemnity and
moral damages for crimes and quasi-delicts resulting in death. In
these cases, what the Court increased, through interpretation of the
monetary values, was the civil indemnity awarded to the victim of
the crime and not the penalty imposed on the offender.
 See Emesto L. Pineda, Torts and Damages (2004), p. 139. As
[31]
quoted:
"Human life has heretofore been very cheap, in law and the practice
thereunder. Before the passage of Commonwealth Act No. 284 in
June 1938 the practice was to allow P1,000.00 to the heirs of the
deceased in case of death caused by crime. Later, by virtue of that
special law, a minimum of P2,000.00 was fixed, but the court usually
awarded only the minimum, without taking the trouble to inquire into
the earning capacity of the victim, and regardless of aggravating
circumstances."
 Referring to Commonwealth Act No. 284.
[32]
 Orceo v. Commission on Elections, Concurring Opinion,
[33]
Associate Justice Brion, G.R. No. 190779, March 26, 2010, 616
SCRA 684, 703, citing Ruben E. Agpalo, Statutory Construction,
177-178 (2003).
 (1971).
 Ibid.
[34]

 People of the Philippines v. Ching Kuan, 74 Phil. 23, 24 (1942).

[43]

 See Keith E. Whittington, Originalism 2.0: The Twenty-Ninth

[35]

Annual Federalist Society National Student Symposium On Law  Central Bank Employees Assoc., Inc. v. Bangko Sentral ng
[44]

And Public Policy -- 2010: I. Originalism: A Rationalization For Pilipinas, 487 Phil. 531, 560 561 (2004); and Quinto v. Commission
Conservativism Or A Principled Theory Of Interpretation?: Is on Elections, G.R. No. 189698, December 1, 2009, 606 SCRA 258,
Originalism Too Conservative?, Copyright (c) 20 II Harvard Society 291.
for Law & Public Policy, Inc., 34 Harv. J.L. & Pub. Pol'y 29.
(www.lexisnexis.com)   Gregorio, Fundamentals of Criminal Law Review (2008), p. 953.
[45]

See also Thomas B. Colby and Peter J. Smith, Living Originalism,

2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com)  Section 19, Article VIII ofthe Constitution pertinently reads:
[46]

 See Thomas B. Colby and Peter J. Smith, Living Originalism.

[36]
2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com)
 See Keith E. Whittington, Originalism 2.0: The Twenty-Ninth
[37]
Annual Federalist Society National Student Symposium On Law
And Public Policy -- 2010: I. Original ism: A Rationalization For
Sec. 19. Except in cases of impeachment, or as otherwise provided in
this Constitution, the President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after conviction by final
judgment.
 Sec. 2. Defmition of the Crime of Plunder; Penalties. - Any public
[47]

Conservativism Or A Principled Theory Of Interpretation?: Is officer who, by himself or in connivance with members of his
Originalism Too Conservative?, Copyright (c) 2011 Harvard Society family, relatives by affinity or consanguinity, business associates,
for Law & Public Policy, Inc., 34 Harv. J.L. & Pub. Pol'y 29. subordinates or other persons, amasses, accumulates or acquires ill-
(www.lexisnexis.com) gotten wealth through a combination or series of overt criminal acts
as described in Section 1 (d) hereof in the aggregate amount or total
 See Thomas B. Colby and Peter J. Smith, Living Originalism,
[38]
value of at least Fifty million pesos (P50,000,000.00) shall be guilty
2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com) of the crime of plunder and shall be punished by reclusion perpetua
to death. Any person who participated with the said public officer in
 Ibid
[39]
the commission of an offense contributing to the crime of plunder
shall likewise be punished for such offense. In the imposition of
 See Thomas B. Colby and Peter J. Smith. Living Originalism,
[40]
penalties, the degree of participation and the attendance of mitigating
2009 Duke law Journal. 59 Duke L.J. 239. (www.Iexisnexis.com) and extenuating circumstances, as provided by the Revised Penal
Code, shall be considered by the court. The court shall declare any
 City of Manila v. Han. Laguio, Jr., 495 Phil. 289, 326-327 (2005).
[41]
and all ill-gotten wealth and their interests and other incomes and
assets including the properties and shares of stocks derived from the
 Ibid. See also Regala v. Sandiganbayan, 330 Phil. 678, 719
[42]
deposit or investment thereof forfeited in favor of the State.
(1996), citing Gumabon v. Director of Prisons, 37 SCRA 420
  Section 3 Definitions - xxx
[48]

(c) Any person knowing that any monetary instrument or property is

(b) "Covered transaction" is a single, series, or combination of required under this Act to be disclosed and filed with the Anti-
transactions involving a total amount in excess of Four million Money Laundering Council (AMLC}, fails to do so.
Philippine pesos (Php4,000,000.00) or an equivalent amount in
foreign currency based on the prevailing exchange rate within five  438 Phil. 749 (2002).
[49]

(5) consecutive banking days except those between a covered

institution and a person who, at the time of the transaction was a  353 Phil. 37, 43-44 (1998).
[50]

properly identified client and the amount is commensurate with the

business or financial capacity of the client; or those with an  ld. at 43.
[51]

underlying legal or trade obligation, purpose, origin or economic

justification.  Supra note 47, at 754.
[52]

It likewise refers to a single, series or combination or pattern of  Ibid.

[53]

unusually large and complex transactions in excess of Four million

Philippine pesos (Php4,000,000.00) especially cash deposits and  Supra note 47, at 755.
[54]

investments having no credible purpose or origin, underlying trade

obligation or contract.  279 PhiL 448, 455 (1991).
[55]

SEC. 9. Prevention of Money Laundering; Customer Identification  See Lim v. People, supra note 47, at 755; People v. Tongko,
[56]

Requirements and Record Keeping. supra note 48, at 44; and Baylosis v. Han. Chavez, Jr., supra, at 458,
465-466.
xxx
 During the Constitutional Commission's deliberations on the Bill
[57]

(c) Reporting of Covered Transactions. - Covered institutions shall
report to the AMLC all covered transactions within five (5) working
days from occurrence thereof, unless the Supervising Authority
concerned prescribes a longer period not exceeding ten {l0) working
days.
SEC. 4. Money Laundering Offense. Money laundering is a crime
whereby the proceeds of an unlawful activity are transacted, thereby
making them appear to have originated from legitimate sources. It is
committed by the following:
xxx
of Rights, Commissioner Maambong noted the change in language
of the draft Constitution from "cruel, degrading or inhuman" to
"cruel and unusual," thus:
MR. MAAMBONG: I will just ask one more question, Mr. Presiding
Officer. On Section 22, the original phrase used in the 1935
Constitution was "cruel and unusual punishment."
FR. BERNAS: Yes.
MR. MAAMBONG: In the configuration of the 1973 Constitution,
the phrase became "cruel or unusual punishment."

FR. BERNAS: That is correct.
MR. MAAMBONG: In the United States Constitution as it stands
now, it is still "cruel and unusual punishment." But now in the
present submission that we are going over, it is "cruel or inhuman."
FR. BERNAS: "Cruel, degrading or inhuman."
MR. MAAMBONG: I just want to find out, Mr. Presiding Officer,
why the Committee changed the word "unusual" to "inhuman."
FR. BERNAS: The reason for the change, Mr. Presiding Officer, is
this: We avoided the use of the word "unusual" because it tended to
give the interpretation that one cannot innovate therefore as far as
penology is concerned -that, if a penalty is something that was never
used before, then it would be invalid. So, in order to allow for the
development of penology we decided that we should not prohibit
unusual punishments in the sense that they are new or novel. Record
of the I 986 Constitutional Commission, Vol. I, Jul. 17, 1986, R.C.C.
No. 32.
DISSENTING OPINION
ABAD, J.:
The Court is apparently not prepared at this time to reexamine and
change the existing practice of imposing the penalty for estafa based
on the amount of the fraud committed in terms of the 1930 values of
money and properties.
The Facts and the Case
On May 2, 1991 Danilo Tangcoy entrusted P98,000 worth of jewelry
items to petitioner Lito Corpuz for the latter to sell on commission. If
sold, Corpuz was to turn over the proceeds to Tangcoy and, if not, he
was to return the items after 60 days. But Corpuz neither remitted the
stated proceeds nor returned what he got. Consequently, the Public
Prosecutor of Olongapo charged him with estafa before the Regional
Trial Court (RTC) of that city.[1]
On July 30, 2004 the RTC found Corpuz guilty as charged and
sentenced him to suffer an indeterminate penalty of imprisonment
from 4 years and 2 months of prision correccional in its medium
period, as minimum, to 14 years and 8 months of reclusion
temporal in its minimum period, as maximum.[2]
On appeal, the Court of Appeals (CA) affirmed[3] Corpuz’s
conviction but modified the penalty to 4 years and 2 months
of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus incremental penalty of one year for each additional
P10,000 for a total maximum of 15 years.[4] Corpuz filed a motion
for reconsideration of the appellate court’s Decision but the CA
denied the same, thus, the present petition for review.
While the Court’s Third Division was deliberating on the case, the
question of the continued validity of imposing on persons convicted
of crimes involving property came up. The legislature apparently
pegged these penalties to the value of money and property in 1930
when it enacted the Revised Penal Code.[5] Since the members of the
Division reached no unanimity on this question and since the issues
are of first impression, they decided to refer the case to the Court En
Banc for consideration and resolution.
In view of the far reaching effects of any ruling in the case and the
great number of accused who may be affected by it,[6] the Court
required the Office of the Solicitor General (OSG) and counsel for
Corpuz to file their comments on the issues that the Court raised.
Further, it invited a number of amici curiae for their views.
The following amici graciously submitted their papers: a) De La
Salle University College of Law Dean and head of the Free Legal
Assistance Group, Jose Manuel L. Diokno; b) Ateneo de Manila
School of Law Dean, Sedfrey M. Candelaria; c) University of the
Philippines Professor Alfredo F. Tadiar; d) the Senate President; and
e) the Speaker of the House of Representatives. [7] The Court heard
the parties and the amici on oral arguments on February 19, 2014,
with Atty. Mario L. Bautista, entering his appearance as counsel de
officio for Corpuz, and arguing the case on the latter’s behalf. [8]
The Issues Presented
The issues may be summarized as follows:
1. Whether or not, procedurally, the Court may determine the
constitutionality of the penalty that the CA imposed on Corpuz even
when he did not raise such question in his petition for review;
2. Whether or not the penalty of 4 years and 2 months to 15 years
that the CA imposed on Corpuz for a P98,000 fraud based on the
penalty that the legislature pegged on the value of money or property
in 1930 violates his constitutional right to equal protection of the
law;
3. Whether or not that portion of Article 315 of the Revised Penal
Code that imposes on Corpuz in addition to the basic penalty of 8
years and 1 day of imprisonment an additional incremental penalty
of 1 year for each additional P10,000 of the amount of fraud in
excess of P22,000 violates his constitutional right against cruel,
unusual, and degrading punishment; and
4. If the answers to the second or third issues are in the affirmative,
whether or not, applying the rules of statutory construction, the Court
may, rather than declare the relevant statutory penalties
unconstitutional, determine the legislative intent with respect to them
and, accordingly, adjust the amount of the present fraud to its 1932
equivalent and impose the proper penalty.
Discussion
1. Issues Raised Motu Proprio
The OSG points out that it is not right for the Court to decide the
issue of the correctness of the penalty imposed on Corpuz since he
did not raise such issue.[9]
But the Court, like the CA, has always regarded it as a duty to the
accused in every criminal case that comes before it to review as a
matter of course the correctness of the penalty imposed and rectify
any error even when no question has been raised regarding the same.
[10]
 That the error may have a constitutional dimension cannot thwart
the Court from performing such duty.
Besides, as Dean Sedfrey M. Candelaria, one of the amici, noted in
his comment, the Court has in previous cases, when fundamental
issues are involved, taken cognizance of the same despite lack of
jurisprudential requirements for judicial review. [11] Indeed, the Court
said in People v. Hon. Judge Vera,[12] that “courts in the exercise of
sound discretion, may determine the time when a question affecting
the constitutionality of a statute should be presented x x x [t]hus, in
criminal cases, although there is a very sharp conflict of authorities,
it is said that the question may be raised for the first time at any stage
of the proceedings, either in the trial court or on appeal.” [13]
In Government Service Insurance System, Cebu City Branch v.
Montesclaros,[14] while the respondent manifested loss of interest in
pursuing the case, the Court through Justice Antonio T. Carpio, said,
that “social justice and public interest demand that [x x x] the
constitutionality of the proviso [be resolved]” since “the issue
involves not only the claim of [respondent] but also that of other
surviving spouses who are similarly situated and whose claims GSIS
would also deny based on the proviso.”[15] To the same effect is the
Court’s ruling in Central Bank Employees Association, Inc. v.
Bangko Sentral ng Pilipinas.[16] Here in Corpuz, the ruling of the
Court will affect thousands of persons who are presently charged or
in the future may be charged with crimes the penalties for which are
pegged to the value of the money or property involved.
Moreover, the Court has itself raised these issues because of their
importance and has heard the parties both on written comments and
on oral argument. The due process requirement for hearing and
adjudicating the issues now before the Court has been met.
Now to address the substantive issues:
2. Criminal Penalties and Inflation
As a general principle, crimes found in the Revised Penal Code carry
with them the same penalties whatever year the accused commits
them. For example, one who mutilates a Philippine coin in 1932,
when the code took effect, would go to jail for 2 years and 4 months
maximum, exactly the same penalty that another who mutilates a
coin in 2014 would get. The correspondence between the gravity of
the offense and the severity of the penalty does not change with the
passage of time.
But, unwittingly, the penalties for crimes involving property under
the Revised Penal Code are in breach of that principle. Although
these penalties are meant to be proportionate to the harm caused,
they are not described in specific and constant terms like the number
of days of incapacity for work of the offended party in physical
injuries cases.
Rather, the harm done in property crimes are made to depend on the
“amount of the fraud” committed,[17] on the “value of the property
taken,”[18] on the “value of the thing or property stolen,”[19] or on “the
value of the damage caused.”[20] As it happens, money and property
values are in a state of constant change, and sways with the wind of
economic change, primarily with the rate of inflation from year to
year. The objects of commerce like bread and fish do not change but
their prices or monetary values change in the course of time.
For instance, in 1932 when the Revised Penal Code took effect, rice
was priced at an average of P4.50 per cavan.[21] If one steals a sack of
rice in 1932, he would be imprisoned for 4 months maximum
corresponding to the value of what he stole. At present, that sack of
rice is priced at about P1,800.00 per cavan.[22] If one steals a sack of
rice today, he would be imprisoned for 4 years and 2 months
maximum. In other words, in a crime involving property the penalty
depends on when it is committed.
Since the price of rice in 1932 (P4.50 per cavan) is a mere 0.25% of
today’s price (P1,800.00 per cavan), does this mean that the P100
today is the equivalent of only P0.25 in 1932? It is uncertain since
the government did not yet conduct a statistical survey of the prices
of key commodities in 1932 that would provide empirical support for
such a conclusion.[23] The first of such a statistical survey was made
only in 1949, enabling the government after comparison with recent
surveys to determine that the purchasing power of P1 in 1949 is the
equivalent of about P100 today—P1 is to P100.[24]
For want of reliable 1930 economic data, it will be assumed for the
purpose of this discussion that the purchasing power of the peso then
did not vary much from that of 1949 which, as already stated, has
been officially established. This assumption is based on the Court’s
own observation in the case of People v. Pantoja[25] that the
purchasing power of the peso in 1949 was “one-third of its pre-war
purchasing power,” meaning P1 as against P3. This currency
movement is minimal and may, for convenience, be considered
absorbed in the massive erosion of the purchasing power of the peso
by about 100 times from 1949 to the present. Consequently, this
discussion will use this reference rate—the P1 is to P100—in
comparing the prices of the past (1930-1949) with the present.
3. Escalation of Penalties
and the Equal Protection Clause
The Revised Penal Code of 1930 pegs the penalties for estafa to the
amount of fraud committed as follows:      This uneven treatment is true in Corpuz’s case. The P98,000.00
  
Amount of the Fraud Penalty
1) P22,001 and above = 8 yrs. & 1 day plus 1 year for
every additional P10,000.00 (but
not more than 20 years)
2) P12,001 to P22,000 = 4 yrs., 2 mos. & 1 day to 8 yrs.
3) P6,001 to P12,000 = 6 mos. & 1 day to 4 yrs. & 2 mos.
4) P201 to P6,000 = 4 mos. & 1 day to 2 yrs. & 4 mos.
5) P0.01 to P200 = 4 mos. & 1 day to 6 mos.
Unmindful of the immense erosion of the purchasing power of the
peso, courts have persisted in literally applying the above table of
penalties in fraud cases. As a result, they in effect mete out heavier
penalties from year to year for the commission of exactly the same
offense.
For instance, if the accused defrauds another of 79 cavans of rice in
1930-1949, then valued at only P1,422.00 (P18.00 per cavan), she
would be imprisoned for 2 years and 4 months maximum. This
would cause her pain but tolerable pain. Yet, if another commits
exactly the same fraud today when that 79 cavans of rice is now
valued at P142,200.00 (P1,800.00 per cavan), she would be
committed to prison for 20 years maximum. She would leave prison
an old woman, irreversibly deprived of the company of her family
for the greater part of her life. This is a gross denial of her right to
equal protection since the first offender got off after 2 years and 4
months whereas she got off after 20 years.
Her 20-year prison term is of course enormous because the penalty
for fraud amounting to P22,000.00 is already 8 years and 1 day
maximum but, since the amount of her fraud (P142,200.00) exceeds
that figure, she would suffer additional incremental imprisonment of
1 year for every P10,000.00 in excess of the P22,000.00 for a total of
20 years.
jewelry items subject of his offense would have a value of only P980
in 1932. Consequently, had he committed his crime that year, he
would have been imprisoned for only 2 years and 4 months
maximum. But since he committed it 43 years later in 1991 when the
jewelry items are now valued at P98,000.00 due to inflation, he
would be imprisoned for 15 years maximum—the same crime, the
same law, yet a shockingly higher penalty. This result would
undoubtedly deny Corpuz his constitutional right to equal protection
of the law.
4. Incremental Penalty and the
Cruel, Unusual, and Degrading
Punishment Clause
Justice Antonio T. Carpio expressed the view, joined by Dean
Diokno,[26] that insofar as Article 315 imposes on Corpuz in addition
to the basic penalty of 8 years and 1 day an additional incremental
penalty of 1 year for each additional P10,000.00 of the amount of
fraud in excess of P22,000.00, such law violates his constitutional
right against cruel, unusual, and degrading punishment. Putting a
price of P10,000.00, about the cost of five sacks of rice, for each
additional year of imprisonment makes the penalty grossly
disproportionate to the wrong committed. This view would thus have
the incremental penalty voided. Professor Tadiar and Dean Diokno
appear to be sympathetic to it.[27]
The incremental penalty is of course grossly disproportionate to the
wrong committed. But that penalty would not have been regarded as
such if the offense had been committed in 1932 when P10,000.00
was a hefty sum. Indeed, if it were to be adjusted for inflation, that
P10,000.00 would be the equivalent of P1,000,000.00 today. An
incremental penalty for each P1,000,000.00 would not have been that
bad. Anyway, the point is that it is the curse of inflation, not the idea
of an incremental penalty, which is the culprit.
If Justice Carpio’s view is adopted, the Court would annul the
incremental penalty but maintain the validity of the basic penalties
for fraud. But those penalties are just as disproportionate to the
wrong committed.
For instance, half a gallon of coconut cooking oil would cost about
P2.03 in 1930-1949. If Alex gives Ben P2.03 in 1949 to buy for him
such half-gallon but Ben instead pockets the P2.03, he would be
imprisoned 6 months maximum for estafa. On the other hand, if
Carlos gives Dante P203 today to buy for him also a half-gallon of
coconut cooking oil but Dante instead pockets the P203, he would be
imprisoned for 2 years and 4 months maximum. To be imprisoned
and separated from family for 2 years and 4 months for the taking of
the price of a half-gallon cooking oil, what it will cost a hungry
couple and their child their meal, is just as cruel, unusual, and
degrading. It is an outrage to a democratic society even if no
incremental penalty is involved.[28]
The harshness of this antiquated 1930 scheme for punishing criminal
offenders is doubly magnified in qualified theft where the offender is
a domestic helper or a trusted employee. Qualified theft is a grievous
offense since its penalty is automatically raised two degrees higher
than that usually imposed on simple theft. Thus, unadjusted for
inflation, the domestic helper who steals from his employer would be
meted out a maximum of:
a) 6 years in prison for a toothbrush worth P5;[29]
b) 12 years in prison for a lipstick worth P39;[30]
c) 14 years and 8 months in prison for a pair of female slippers worth
P150;[31]
d) 20 years in prison for a wristwatch worth P19,000;[32] or
e) 30 years in prison for a branded lady’s handbag worth P125,000.
[33]
Unless checked, courts will impose 12 years maximum on the
housemaid who steals a P39 lipstick from her employer. They will
also impose on her 30 years maximum for stealing a pricy lady’s
handbag. This of course is grossly obscene and unjust, even if the
handbag is worth P125,000.00 since 30 years in prison is already the
penalty for treason, for raping and killing an 8-year-old girl, for
kidnapping a grade school student, for robbing a house and killing
the entire family, and for a P50-million plunder.
It is not only the incremental penalty that violates the accused’s right
against cruel, unusual, and degrading punishment. The axe casts its
shadow across the board touching all property-related crimes. This
injustice and inhumanity will go on as it has gone on for decades
unless the Court acts to rein it in.
5. Judicial Construction of Statutes
But annulling Article 315 of the Revised Penal Code or portions of it
slaps the hand of the legislature that enacted it in 1930 when the
economy of the time warranted the amounts stated in those penalties.
Allowing courts to adhere to that law but construe it instead in a way
that would attain its purpose, an alternative based on long
precedents, presents a more moderate remedy.
It may be assumed that those who enacted the Revised Penal Code in
1930 did not foresee the onslaught of inflation in the second half of
the century. They had an agricultural economy and, presumably, the
purchasing power of the peso at that time had not changed
perceptibly in the years that they had known. It would be imprudent
to believe that, if those legislators had an inkling of the shape and
value of money and things would take down the years to 2014, they
would have still pegged those penalties to their 1930 economy. But
they did. Clearly, they were uninformed and, therefore, their intent
must have been to match the penalties written in the law to the values
of money and property as they understood it at that time.
As it turned out, the passage of time altered what the 1930 legislature
intended respecting those penalties. Time made those penalties toxic
and this is exemplified in the case of Corpuz. On the one hand, if the
Court were to adjust the penalty imposed on him to compensate for
inflation, using the government’s P1 to P100 equation, Corpuz
should be deemed to have defrauded Tangcoy of only P980 rather
than P98,000. He would then be meted out a penalty of only 2 years
and 4 months maximum. This is about the same penalty imposed for
the crimes of offending religious feelings, [34] tumultuous disturbance,
[35]
 and slander,[36] which are correctional penalties.
On the other hand, if the amount of fraud is made to depend on the
false assumption that the value of P1 in 1930-1949 is the same as the
value of P1 today, Corpuz would be liable for fraud amounting to
P98,000 and draw a penalty of 4 years and 2 months to 15 years
maximum, an afflictive penalty. These 15 years would be within the
range of the penalty for homicide[37] or for intentional abortion thru
violence against a pregnant woman,[38] which means meting out to
Corpuz a penalty equivalent to the taking of human life.
About seven years ago, a lawyer accused his houseboy, Reynaldo
Bayon, of stealing from him watches and jewelry worth
P540,000.00.[39] For this, the trial court imposed on Bayon the
penalty of imprisonment for 30 years maximum. Ironically, the trial
court meted out to Bayon the same penalty that another trial court
imposed on Ricardo Solangon and Apolonio Haniel who kidnapped
Libertador Vidal and demanded ransom from his tormented family.
[40]
 After lengthy negotiations, they settled for P50,000.00, got the
money, and killed their victim. Since the police recovered only his
bones, no one knew just how much Libertador suffered before being
killed.
Did Reynaldo, the houseboy, deserve the same severe penalty
imposed on Ricardo and Apolonio for their brutal crime? Reynaldo
did not rape his employer’s wife, torture his children, or murder any
of them. If the prosecution were to be believed, his employer merely
lost some of his collection of watches and jewelry. In the present
case, the wealthy jeweler did not lose his life to Corpuz. All that he
supposedly lost to him were a few jewelry worth P98,000.00 today,
the equivalent of but P980.00 in 1930-1949. Still, the Court would,
literally applying the law, sentence Corpuz to a maximum of 15
years in prison like he already killed the jeweler in an angry
confrontation.
Again, the key to solving the problem that this case presents lies in
ascertaining the will of the legislature that enacted the Revised Penal
Code in 1930 and give its language the construction that will honor
that will. Some, like the Office of the Solicitor General, the Senate
President, and the Speaker of the House of Representatives hold the
view that adjusting the penalties to compensate for inflation will
amount to judicial legislation.[41]
But the Court need not rewrite the penalties that the law provides.
Rather, the clear intent of the law can be given by, to borrow a
phrase from Atty. Mario L. Bautista, counsel for Corpuz,
“harmonizing” the law or “aligning the numerical figures” [42] to the
economic realities of the present. To put it another way, ascertaining
the facts of the case in order to faithfully apply to it the law as the
legislature intended it is a judicial function. Dean Candelaria of
Ateneo shares this position.[43]
This would not have been the first time that the Court would have
given a construction to the fixed monetary values set by law to take
into account the problems caused by inflation. When the Code
Commission drafted the Civil Code in 1949, it fixed the new
minimum civil indemnity for death to P3,000.00.[44] Article 2206 of
the Code reads:
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though there
may have been mitigating circumstances.[45]
The Civil Code sets the minimum compensation for death at only
P3,000.00. Ordinarily, this legislative judgment has to be obeyed no
matter if it already becomes harsh or unfair to the victim’s heirs as
inflation sets in. For the law is the law. Yet, following past
precedents, the Court would, construing the law in the light of the
inflationary movement of money values, set a new minimum of
P6,000 in 1964,[46] P12,000 in 1968,[47] P30,000 in 1983,[48] P50,000
in 1990,[49] and most recently, P75,000 in 2009.[50] It regarded as
inequitable on account of inflation the award of a measly P3,000 to
the victim’s heirs.
Justice Jose C. Vitug observed that the Court increases the minimum
civil indemnity “to such amounts as the peso value might actually
command at given times and circumstances.”[51]This is not judicial
legislation but taking judicial notice of the relentless rise in money
and property values over the years and construing the law in the light
of such circumstances.
The Court emphasized in People v. Pantoja[52] that these judicial
adjustments are dictated by: “the difference between the value of the
present currency and that at the time when the law fixing a minimum
indemnity” was passed.[53] Pantoja explained that, at its writing, “due
to economic circumstances beyond governmental control, the
purchasing power of the Philippine peso has declined further such
that the rate of exchange now in the free market is U.S. $1.00 to
P4.00 Philippine pesos.”[54]
None of the justices of the Court, which included renowned Chief
Justice Roberto Concepcion, Jose B.L. Reyes, Arsenio P. Dizon,
Querube C. Makalintal, Fred Ruiz Castro, and Enrique M. Fernando,
regarded as amounting to judicial legislation the decision interpreting
the P3,000 minimum for death compensation established by law in
1949 as P12,000 in the economy of the late 60s. There is no record
of Congress disagreeing with them. It makes no sense for the Court
to refuse to use the same reasoning and not employ it to the judicial
construction of the penalty provisions in crimes involving property.
It is of course said that Article 2206 of the Civil Code merely sets the
minimum civil liability for death at P3,000, implying that courts are
free to grant benefits to the victim’s heirs upwards of that minimum.
This is true but the Court’s decisions were not in the nature of mere
suggestions regarding how the courts below are to exercise their
discretions when awarding such benefit. The Court has actually been
raising the minimum civil liability for death. Proof of this is that
when the trial court or the CA orders the payment of only P50,000 to
the victim’s heirs, an amount already well above the minimum of
P3,000 set by law, the Court would readily find the order erroneous
and raise the award to P75,000.
Some would say that Article 2206 of the Civil Code merely governs
civil indemnity whereas Article 315 of the Revised Penal Code on
penalties for estafa governs criminal liability, implying that the latter
is quite different. But the Civil Code stands on the same footing as
the Revised Penal Code in terms of force and effect. One is not
superior to the other. The point is that prudent judicial construction
works equally on both codes.
In any event, the rule is that in case of doubt the provisions of the
Revised Penal Code are to be construed in favor of the accused.
What has happened, however, is that the Court has beginning in 1964
construed the minimum amount set in Article 2206 as subject to
adjustment to cope with inflation although this worked against the
accused in murder and homicide cases. The Court has not come
around to give the same construction to the inflation-affected penalty
provisions of Article 315 of the Revised Penal Code which would be
favorable to him.
Incidentally, it is not the severity of the penalty written in the law
that the Court has to adjust in order to compensate for inflation but
the amount of the fraud or the damage that was proved at the trial.
For instance, if an offender defrauds another of P20,000 worth of
jewelry items today and he is found guilty, the trial court could make
a finding that he had committed fraud in that amount. During
sentencing, however, it would just determine, applying the P1 to
P100 equation stated above, that such P20,000 is the equivalent of
P200 in the economy of the 1930 table of penalties. The court would
then apply the penalty provided by law for such reduced amount: 4
months and 1 day to 6 months. It would have been that simple.
It is pointed out that the Court’s remedy in Corpuz’s and similar
cases lies in Article 5 of the Revised Penal Code, the pertinent
portion of which provides:
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be deemed
proper, without suspending the execution of the sentence, when a
strict enforcement of the provisions of this Code would result in the
imposition of clearly excessive penalty, taking into consideration the
degree of malice and injury caused by the offense. [55]
But the above applies to a specific case before the court that tried it
where, “taking into consideration the degree of malice and injury
caused by the offense,”[56] the penalty to be imposed on the accused
appears to be excessive. This is best exemplified in a case where the
trial court regarded as excessive the lawful penalty it imposed on a
father and his son who stole 10 tender coconut fruits from a
plantation solely for the family’s consumption. [57]
Here, however, the penalty has become excessive, not because of the
unusual circumstances of Corpuz’s case but because the penalty has
become grossly iniquitous through time, affecting not just Corpuz
but all those charged with crimes the penalties for which depend on
the value of money or property involved.
It is said that this decision would cause numerous difficulties one of
which is that the Court does not have the means for ascertaining the
purchasing power of the peso at any given time.
But it has the means. The Philippine Statistical Authority (PSA),
formerly the National Statistics Office is the “highest policy making
body on statistical matters.”[58] It regularly gathers from the market
place the average prices of a basket of consumer items like rice,
sugar, fish, meat, school supplies, and other products.[59] The PSA
then determines based on these the purchasing power of the peso in a
given year in relation to other years. “[O]nce the data generated by
the PSA staff is approved and released by the National Statistician, it
is deemed official and controlling statistics of the government.” [60] It
is the PSA that provided the official finding that the P1 in 1949 is the
equivalent of about P100 in 2013.[61] This information is used by
government planners, international rating agencies, economists,
researchers, businessmen, academicians, and students. The rules
allow the Court to take judicial notice of this fact. [62]
The OSG claims that there are many ways of determining the present
value of money, not just through its purchasing power as the PSA
determines. This may be true but it is presumed that the legislature
intended the term “value” in reference to money based on how
money is commonly understood, not on how it might be understood
by theoreticians or moralists. Everyone knows that the value of
money of any amount depends on what it can buy—its purchasing
power. People do not earn and keep money for its own sake.
Another concern is that if the Court adjusts the penalty to cope with
inflation, such adjustments may have unintended effects on other
crimes where the penalties depend on the value of the damage caused
or the property unlawfully taken. Any adjustment of penalty
in Corpuz would of course directly affect most of these crimes. That
is inevitable if justice is to be served in those other cases as well
since the same reasoning applies to them.
For instance, if a poor woman steals four small cans of corned beef
from the supermarket worth P280, which would be only P2.80 in
1932, she will be jailed for 4 years and 2 months maximum. If a poor
employee pockets P250 in government money entrusted to him,
which would be only P2.50 in 1932, he will be jailed for 10 years
maximum. If one armed with a knife but commits no violence or
intimidation robs a public building by forcibly opening a window
and stealing two brooms worth P300, which would be only P3.00 in
1932, he will be jailed for a maximum of 20 years. The absurdity in
the literal application of the 1932 penalties equally applies to these
crimes.
The uniform adjustment in the base amounts using the PSA formula
of P1 to P100 will maintain uniform levels of legislative indignation
or outrage over the wrongs committed in these crimes. The harshness
of the incremental penalty of one year imprisonment for every
P10,000.00 would be obviated since the adjustment would make that
one year imprisonment for every P1,000,000.00 illegally taken,
which would be quite reasonable already. For this reason, no
distortion can ever result in the application of the decision in similar
cases.
To repeat, from this dissent’s point of view, it is the amount of
money or value of the thing defrauded, taken, malversed, or damaged
that undergoes adjustment or correction resulting from a realistic
appreciation of the facts of the case. The law is not amended or
changed.
Finally, there is concern that if this dissent were to be adopted, the
same would result in the lowering of the penalties that courts have
these past years been meting out for crimes involving property. It is
pointed out that the ruling fails to take into account its effect on the
victims.
But the dissent is not advocating the lowering of the penalties for
those crimes; it merely seeks the restoration of the correct penalties.
The adjustments sought would merely compensate for inflation in
order to accomplice what the legislature intends regarding those
crimes. The victims of crimes today are not entitled to retributions
that are harsher than what the law provides. They have no right to
exact more blood than the victims of yesterday.
For all the above reasons, I vote to AFFIRM Lito Corpuz’s
conviction with MODIFICATION of the indeterminate penalty to 2
months of arresto mayor, as minimum, to 1 year and 8 months
of prision correccional, as maximum, entitling him to probation
under the ruling laid down in Colinares v. People.[63]
 Docketed as Criminal Case 665-91.
[1]
 Rollo, p. 52.
[2]
 Penned by Associate Justice Estela M. Perlas-Bernabe (now a
[3]
member of the Court) and concurred in by Associate Justices Lucas
P. Bersamin (now also a member of the Court) and Rodrigo V.
Cosico.
 Rollo, p. 40.
[4]
 An Act Revising The Penal Code and Other Penal Laws
[5]
[REVISED PENAL CODE], Act 3815 (1932).
 As of 2014, 6509 people have been convicted of and are serving
[6]
sentence for estafa, qualified theft, theft, robbery, arson, and
malicious mischief. Out of this population, 4480 are slated to spend
half a decade or more in prison. (Nora Corazon T. Padiernos, Chief
of Planning and Management Division, Bureau of Corrections,
Statistics on Crimes Against Property, February 14, 2014) These
people are just some of those who would have been affected by this
decision. There is an overwhelming number of detainees around the
country with similar fates. Manila City Jail alone has 630 men in  Id., Arts. 299 and 302.
[18]

detention for robbery and 249 for theft. (Manila City Jail, February
2014) To say that they are living in cramped quarters is a great  Id., Arts. 309 and 310.
[19]

understatement. See Maria Luisa Isabel L. Rosales, Cruel

Detentions: Subhuman Prison Conditions – A Form of Cruel and  Id., Art. 328.
[20]

Unusual Punishment, 54 Ateneo L.J. 568 (2009).

 1 cavan is equivalent to 25 gantas (See Barreto v. Reyes, 10 Phil.
[21]

 The Court also invited the Dean and some professors of the
[7]
489, 491 [1908]). A ganta of rice is approximately 2.5 kilos when
University of the Philippines School of Economics and the President computed at 3 quarts to a ganta. (See United Nations. Department of
of the Philippine Judges Association to submit their views but they Economic and Social Affairs, Statistical Office of the United
opted not to. Nations, World Weights and Measures, Handbook for Statisticians,
Statistical Papers, Series M No. 21 Revision 1
 Corpuz v. People of the Philippines (Minute Resolution), G.R. No.
[8]
[ST/STAT/SER.M/21/rev.1] New York: United Nations [1966]);
180016, February 25, 2014, p. 382. Wordnik, Ganta available at http://www.wordnik.com/words/ganta
(last accessed April 23, 2012).
 Office of the Solicitor General, Oral Arguments, TSN.
[9]

 Updates on Palay, Rice, and Corn Prices, Vol. 4, No. 34 (August

[22]

 See Gelig v. People, G.R. No. 173150, July 28, 2010, 626 SCRA
[10]
2012), available at http://www.bas.gov.ph/?ids=amsad_prices.
48, 49; People v. Laguerta, 398 Phil. 370, 375 (2000), citing People
v. Balacano, 391 Phil. 509, 525-526 (2000).  Carmen N. Ericta, OIC National Statistician, Philippine Statistics
[23]

Authority, SUBJECT: Update on the Value of the Present Day Peso

 Dean Sedfrey M. Candelaria, Comment, p. 3 (September 30,
[11]
as Compared to its Prevailing Value in 1932 (February 10, 2014).
2013).
 Id., citing Bangko Sentral ng Pilipinas (formerly known as
[24]
[12]
 65 Phil. 56 (1937). Central Bank of the Philippines), Statistical Bulletin, Vol. IX, No. 4.
[13]
 Id. at 88.  134 Phil. 453 (1968).
[25]

[14]
 478 Phil. 573 (2004).  Dean Jose Manuel I. Diokno, Comment (September 21, 2013).
[26]

[15]
 Id. at 580.  “Section 5 of the Revised Penal Code x x x violates the bedrock
[27]

principle of a democratic and republican government x x x [and] may

[16]
 487 Phil. 531 (2004). outrightly be struck down as unconstitutional in the present petition
by the power of judicial review. x x x Article 39 x x x must be struck
[17]
 The term used in the REVISED PENAL CODE, Art. 315. down as unconstitutional for its imposition of a cruel punishment
that has long been outdated by currency devaluation. Thus, the
condition for the exercise of the power of judicial review is that the
questionable statute must be closely intertwined with the principal
issue of the case, that is the disproportionateness of the penalty
imposed based on a devalued currency. x x x Thus, it is imperative
for this Supreme Court to declare through its power of judicial
review that these statutory provisions are unconstitutional.”
(Professor Alfredo F. Tadiar, Constitutional Challenge in the
Sentencing Process, pp. 14-16, August 16, 2013).
 Prof. Tadiar agreed to this statement.
[28]
 Angola Toothbrush available at
[29]
http://www.ebay.ph/itm/ANGOLA-Toothbrush-/221195152522?
pt=LH_DefaultDomain_211&hash=item3380422c8a (last accessed
March 6, 2014).
 Taupe Lipstick available at http://www.ebay.ph/itm/taupe-
[30]
lipstick-/271167294212?pt=LH_Default
Domain_211&hash=item3f22d48b04 (last accessed March 6, 2014).
 Authentic Brand New Old Navy Slippers available at
[31]
http://www.ebay.ph/itm/Authentic-Brand-New-OLD-NAVY-
Womens-Lippers-Size-7-Color-White-/261178377863?
pt=LH_DefaultDomain_211&hash= item3ccf71c687 (last accessed
March 6, 2014).
 Auth Philip Stein Large Black Calfskin Strap
[32]
Brandnew available at http://www.ebay.ph/itm/AUTH-Philip-Stein-
Large-Black-Calfskin-Strap-Brand-New-/261176803770?
pt=LH_DefaultDomain_211&hash= item3ccf59c1ba (last accessed
March 6, 2014).
 Authentic Louis Vuitton Lumineuse available at
[33]
http://www.ebay.ph/itm/BNEW-Authentic-Louis-Vuitton-LV-
Lumineuse-PM-Aube-140923515015?
pt=LH_DefaultDomain_211&hash=item20cfb23087 (last accessed
March 6, 2014).
 REVISED PENAL CODE, Art. 133.
[34]
 Id., Art.153.
[35]
 Id., Art. 174.
[36]
 Id., Art. 249.
[37]
 Id., Art. 256.
[38]
 People v. Bayon, G.R. No. 168627, July 2, 2010, 622 SCRA 702.
[39]
 People v. Solangon, 563 Phil. 316 (2007).
[40]
 Office of the Solicitor General, Supplemental Comment (August
[41]
22, 2013); Senate President, Memorandum (September 26, 2013);
and Speaker of the House of Representatives, Memorandum
(October 21, 2013).
 Mario L. Bautista, Compliance 2 (March 12, 2014).
[42]
 “Applied to the present case, while Article 315 of the Revised
[43]
Penal Code appears on its face as constitutionally valid, the manner
by which it is applied by the Court of Appeals to petitioner’s case
will result into an unreasonable consequence for the petitioner.
Instead of being qualified for probation based on an interpretation
that takes into account adjustment for inflation, petitioner would be
made to suffer the penalty of from four (4) years and two (2) months
as minimum to fifteen (15) years as maximum. This interpretation is
plainly discriminatory, unreasonable and oppressive. x x x The
mechanism suggested by the undersigned through judicial
interpretation is not antithetical to the established rule that this Court
in the exercise of the power of judicial review cannot encroach upon
the power of the Legislature.” (Dean Sedfrey M. Candelaria,
Comment, pp. 4, 11-12 [September 30, 2013]).
 REVISED PENAL CODE, Art. 5.
[55]

“It is well settled that a court may consider the spirit and reason of a
statute, and even resort to extrinsic aids, when its literal application  Id.
[56]

would lead to absurdity, contradiction, impossibility, injustice, or

would defeat the clear purpose of the law makers. x x x This Court,  People v. Montano and Cabagsang, 57 Phil. 598 (1932); People
[57]

therefore, can go outside the four corners of the law to give it
meaning.” (Dean Jose Manuel I. Diokno, Free Legal Assistance
Group, De La Salle University College of Law, Comment, p. 3
[September 21, 2013]).
v. Canja, 86 Phil. 518 (1950), (see Dissenting Opinion of J.
Montemayor, pp. 522-523).
 Arsenio M. Balisacan, Socioeconomic Planning Secretary and
[58]

Director-General, National Economic and Development Authority

 An Act to Ordain and Institute the Civil Code of the Philippines,
[44]
(April 23, 2014).
Republic Act 386, Art. 2206 (1950).
 National Statistics Office, Consumer Price Index Primer available
[59]

 Id., Art. 2206.

[45]
at http://www.census.gov.ph/old/data/technotes/Primer%20on
%20Consumer%20Price%20Index.pdf (last accessed March 21,
 M. Ruiz Highway Transit, Inc. v. Court of Appeals, 120 Phil. 102,
[46]
2014); Philippine Satistics Authority, Consumer Price Index for
106 (1964). Bottom 30% Income Households , Reference No. 2014-005 (January
30, 2014).
 People v. Pantoja, supra note 25, at 458.
[47]

 Balisacan, supra note 58.

[60]

 People v. Dela Fuente, 211 Phil. 650, 656 (1983).

[48]

 Ericta, supra note 23.

[61]

 Supreme Court of the Philippines, En Banc, Minutes (August 30,

[49]

1990).  Section 1, Rule 129 of the Rules of Court provides that a court
[62]

shall take judicial notice, without the introduction of evidence, of the

 People v. Anod, G.R. No. 186420, August 25, 2009, 597 SCRA
[50]
official acts of government. It may also take judicial notice as
205, 213; People v. Tubongbanua, 532 Phil. 434, 454 (2006). provided in Section 2 of matters which are of public knowledge, or
are capable of unquestionable demonstration, or ought to be known
 Justice Jose C. Vitug, 4 Civil Law, 2nd ed. 2006.
[51]
to judges because of their judicial functions. Indeed, the Court has in
the past consistently taken note of and acted on the inflationary
 Supra note 25.
[52]
movement of the purchasing power of the peso.

 Id. at 457-458.
[53]
 G.R. No. 182748, December 13, 2011, 662 SCRA 266.
[63]

 Id. at 458.
[54]
 Viewed in this way, I must dissent in the penalty imposed upon the
accused. The pecuniary values that provided the basis for the range
CONCURRING AND DISSENTING OPINION of penalties for the crime of estafa (swindling) were the values in
1932. It is clear that the gravity of a crime where someone was
defrauded of fifty pesos (?50.00) of property in 1932 is not the same
as the gravity of the same offense for property worth fifty pesos (?
“Since we cannot change reality,
50.00) in 2014. The purchasing power of the peso has significantly
let us change the eyes which see reality.”
changed after eight decades, and it is time that we interpret the law
Nikos Kazantzakis[1]
the way it should be: to reflect the relative range of values it had
when it was promulgated. In doing so, we are not rewriting the law,
just construing what it actually means.
LEONEN, J.:
Of course, every interpretation we make on any provision of law
I concur with the ponencia of Justice Diosdado M. Peralta in
occassioned by actual cases will have their own share of difficulties
affirming the conviction of Lito Corpuz. However, I dissent on the
when implemented. This is true when we declare law relied upon by
penalty imposed by the majority. I do not agree that it is judicial
many as unconstitutional, or interpret the provisions of a tax code, or
legislation for us to reconsider the range of penalties created by
even when we clarify the requirements prescribed by the General
Congress in 1932. The range of penalties for the crime of estafa
Accounting and Auditing Manual (GAAM). We have always,
should be recomputed based on present value.
however, proceeded with the right interpretation and dealt with the
difficulties accordingly.
Our duty is to intepret the law. It is a duty reposed on us by the
Constitution. We provide meaning to law’s language and make laws
Definitely, an interpretation of a legal provision more beneficial to
written in a different historical context relevant to present reality. [2]
an accused or a person who is convicted will have a retroactive
effect. This should be because such interpretation is corrective in
The meanings of the text of the law limited by the facts presented in
nature. This should not present extremely debilitating difficulties,
the cases that come to us are not arbitrarily determined. We arrive at
and we do not have to have special rules. The convicted prisoner
such meanings as a collegial court aware that we should keep faith in
could simply file habeas corpus as a post-conviction remedy
the spirit that the laws have been promulgated. Our ideal should be
whenever he or she would have served more than what would be
that we can reflect the political consensus contained in the words
required based on our new interpretations. It is also possible for the
approved by Congress and the President but always framed by the
Department of Justice’s Bureau of Corrections and Parole and
fundamental principles and values of our Constitution. Political
Probation Administration to adopt its own guidelines on the release
consensus is not independent of reality.  It is there to address that
of prisoners. This difficulty is not insurmountable.
reality.
I disagree that it will be difficult to find the correct present value for
My sense of the law’s spirit is that it is always motivated by what is
the amounts involved. In Heirs of the Spouses Tria v. Land Bank of
relevant and what is just under the circumstances.
the Philippines[3] and Secretary of the Department of Public Works
and Highways v. Spouses Tecson,[4] we identified the correct formula
in our concurring and dissenting opinions. The formula for present
value is known and has been relied upon in the business community.
Inflation rates may be discovered using the latest statistics
extrapolating for the years when there had been no available values. I
agree with the approach of Justice Roberto A. Abad in his dissenting
opinion in approximating the value already so that we do not need to
get unneccessarily entangled in the niceties of the science and art of
determining inflation rates.
Even the inflation rate should not present an extraordinarily
insurmountable problem even if it should be computed from 1932.
Inflation is only the change in price of the same index from one year
to the next. Price index is the “measure of the average level of
prices,”[5] while inflation is the “rise in the general level of
prices.”[6] As long as there is a price index, inflation rate can be
derived from comparing one year’s price index with another year’s
price index.
The most commonly used price index is the Consumer Price Index.
The Philippines began recording the Consumer Price Index in 1948,
together with the creation of the Central Bank of the Philippines. [7]
However, even before the creation of the Central Bank, the
Philippines had been recording other price indices that could be used
to approximate inflation and give a more precise picture of the price
level in 1930, the year the Revised Penal Code was approved. A
sectoral price index can be used to substitute the consumer price
index. A dominant sector in the Philippines, agriculture, has a price
index which pre-dates World War I and covers the years 1902 until
1946.[8] Hence, even before the war, for as long as the index
compared with one from another is the same index, an inflation rate
can be derived.
Law has never been a discipline too autonomous from the other
disciplines. The points of view of those that inhabit the world of
economics and finance are not strange to lawyers. The eyes through
which the law views reality should not be too parochial and too
narrow. Our understanding should instead be open enough to allow
us to see more by borrowing from other disciplines. Doing so
enhances rather than weakens judicial rigor.
I am not convinced that a ruling that will affect penalties in other
crimes where the gravity is measured in pesos will present
difficulties too debilitating so as to amount to being
unimplementable. I do not see why courts of law cannot simply
adopt the universally acceptable formula for present value.
An interpretative methodology for penalties is proposed because of
the extraordinary lapse of time from the date of promulgation of the
law (1932) to the present. Definitely, we will not be recomputing the
penalties for all statutes. I am of the view that the approach for
computing the penalties in this case will only be applicable to
statutes that have been promulgated and have not been amended for
no less than the past eight decades. The world was very different
then. A world war intervened. Four different Constitutions with their
corresponding amendments were promulgated and took effect. There
are now more types of property than could have been imagined at
that time.
I hesitate to agree with Justice Carpio’s approach to declare the
incremental penalties as unconstitutional only because it violates the
proscription against cruel and unusual punishments. The approach
creatively addresses the unjustness of the present situation but does
not have the same elegance of principle that is proposed in the
dissent of Justice Abad. Both lead to pragmatic results, and I think
that between these two possibilities, we should lean on that which is
more consistent with the principle of reflecting the spirit of the law
when it was promulgated.
A decision that re-computes penalties to account for present value
should not be seen as a judgment of the achievements of Congress.
That this was not its priority is a matter that should not concern us.
Congress is an entirely separate and autonomous branch of
government, and it would be violative of the constitutional fiat of
separation of powers for us to imply that updating penal statutes
should have been its priority.
Regardless, it is this actual case that confronts us. In my view,
adjusting penalties to account for the purchasing power of the peso is
entirely within our power. It is not judicial legislation, it is merely
interpreting the word “peso” in these range of penalties. It is
quintessentially a judicial activity to interpret. We should not default
on this duty. We cannot wait another century before a just outcome is
to be realized.
ACCORDINGLY, I vote to affirm the conviction of the accused.
However, I vote that the penalty imposed be two months of arresto
mayor as minimum, to one year and eight months of prision
correccional, as maximum, in accordance with the computation
proposed by Justice Roberto Abad in his dissenting opinion.
 Greek writer, poet, playwright, and philosopher, known for his
[1]
novels such as Zorba the Greek (1946) and The Last Temptation of
Christ (1953).
 Ours is the duty to “interpret the law and apply it to breathe life to
[2]
its language and give expression to its spirit in the context of real
facts.” (Emphasis supplied). Tecson v. COMELEC, 468 Phil. 421,
643 (2004) [Per J. Vitug, En Banc], dissenting opinion, J. Carpio
Morales.
 G.R. No. 170245, July 1, 2013, 700 SCRA 188, separate opinion,
[3]
J. Leonen.
 G.R. No. 179334, July 1, 2013, 700 SCRA 243, separate opinion,
[4]
J. Leonen.
 P. A. SAMUELSON AND W. D. NORDHAUS, ECONOMICS
[5]
439 (Eighteenth Edition).
 Id.
[6]
 The Central Bank was created by law under Republic Act No. 265
[7]
in 1949. Sections 22 to 24 refer to the Department of Economic
Research in the Central Bank, mandated, among other
responsibilities, to collect “statistics on the monthly movement of the
money supply and of prices and other statistical series and economic
studies useful for the formulation and analysis of monetary, banking
and exchange policies.” Because of this, the Central Bank started
recording national income estimates in the 1948-1950 period. See K.
Nozawa, History of the Philippine Statistical System (visited April
29, 2014).
 Agricultural statistics are collected to monitor production volume
[8]
and prices of agricultural products, among others. A statistics
division was created for the Bureau of Agriculture as early as 1902.
See K. Nozawa, History of the Philippine Statistical System (visited
April 29, 2014).
Batas.org 

SECOND DIVISION
G.R. No. 225695, March 21, 2018
IRENEO CAHULOGAN, PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review
on certiorari[1] filed by petitioner Ireneo Cahulogan
(petitioner) assailing the Decision[2] dated November
6, 2015 and the Resolution[3] dated June 8, 2016 of
the Court of Appeals (CA) in CA-G.R. CR No. 01126-
MIN, which affirmed the Judgment[4] dated October 4,
2013 of the Regional Trial Court of Cagayan De Oro
City, Misamis Oriental, Branch 41 (RTC) in Crim. Case
No. 2011-507, convicting petitioner of the crime of
Fencing, defined and penalized under Presidential
Decree No. (PD) 1612, otherwise known as the "Anti-
Fencing Law of 1979."[5]
The Facts
On April 18, 2011, an Information[6] was filed before
the RTC charging petitioner with the crime of Fencing,
the accusatory portion of which reads:
That on or about January 14, 2011 [,] at about 4:00
o'clock [sic] in the afternoon, at Bugo, Cagayan de Oro
City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without
the knowledge and consent of the owner thereof, did
then and there wilfully, unlawfully and feloniously buy,
receive, possess, keep, acquire, conceal, sell or
dispose of, or in any manner deal, Two Hundred Ten
(210) cases of Coca Cola products worth
Php52,476.00 owned by and belonging to the offended
party Johnson Tan which accused know, or should be
known to him, to have been derived from the proceeds
of the crime of Theft, to the damage and prejudice of
said owner in the aforesaid sum of Php52,476.00.
Contrary to Presidential Decree No. 1612, otherwise
known as Anti-Fencing Law of 1979.[7]
The prosecution alleged that private complainant
Johnson Tan (Tan), a businessman engaged in
transporting Coca-Cola products, instructed his truck
driver and helper, Braulio Lopez (Lopez) and Loreto
Lariosa (Lariosa), to deliver 210 cases of Coca-Cola
products (subject items) worth P52,476.00 to Demins
Store. The next day, Tan discovered that contrary to
his instructions, Lopez and Lariosa delivered the
subject items to petitioner's store. Tan then went to
petitioner and informed him that the delivery to his
store was a mistake and that he was pulling out the
subject items. However, petitioner refused, claiming
that he bought the same from Lariosa for P50,000.00,
but could not present any receipt evidencing such
transaction. Tan insisted that he had the right to pull
out the subject items as Lariosa had no authority to
sell the same to petitioner, but the latter was adamant
in retaining such items. Fearing that his contract with
Coca-Cola will be terminated as a result of the
wrongful delivery, and in order to minimize losses, Tan
negotiated with petitioner to instead deliver to him
P20,000.00 worth of empty bottles with cases, as
evidenced by their Agreement[8] dated January 18,
2011. Nonetheless, Tan felt aggrieved over the
foregoing events, thus, prompting him to secure an
authorization to file cases from Coca-Cola and charge
petitioner with the crime of Fencing. He also claimed
to have charged Lariosa with the crime of Theft but he
had no update as to the status thereof.[9]
Upon arraignment, petitioner pleaded not guilty, [10] but
chose not to present any evidence in his defense.
Rather, he merely submitted his memorandum,
[11]
 maintaining that the prosecution failed to prove his
guilt beyond reasonable doubt.[12]
The RTC Ruling
In a Judgment[13] dated October 4, 2013, the RTC
found petitioner guilty beyond reasonable doubt of the
crime charged, and accordingly, sentenced him to
suffer the penalty of imprisonment for the
indeterminate period often (10) years and one (1) day
of prision mayor, as minimum, to fifteen (15) years
of reclusion temporal, as maximum.[14]
The RTC found that the prosecution had successfully
established the presence of all the elements of the
crime of Fencing, considering that Lariosa stole the
subject items from his employer, Tan, and that
petitioner was found to be in possession of the same.
The RTC noted that under the circumstances of the
case, petitioner would have been forewarned that the
subject items came from an illegal source since
Lariosa: (a) sold to him the subject items at a discount
and without any corresponding delivery and official
receipts; and (b) did not demand that such items be
replaced by empty bottles, a common practice in
purchases of soft drink products.[15]
Aggrieved, petitioner appealed[16] to the CA.
The CA Ruling
In a Decision[17] dated November 6, 2015, the CA
affirmed petitioner's conviction.[18] It held that
Lariosa's act of selling the subject items to petitioner
without the authority and consent from Tan clearly
constituted theft. As such, petitioner's possession of
the stolen items constituted prima facie evidence of
Fencing - a presumption which he failed to rebut.[19]
Undaunted, petitioner moved for
reconsideration[20] which was, however, denied in a
Resolution[21] dated June 8, 2016; hence, this petition.
The Issue Before the Court
The issue for the Court's resolution is whether or not
the CA correctly upheld petitioner's conviction for the
crime of Fencing.
The Court's Ruling
The petition is without merit.
"Time and again, it has been held that an appeal in
criminal cases opens the entire case for review, and it
is the duty of the reviewing tribunal to correct, cite,
and appreciate errors in the appealed judgment
whether they are assigned or unassigned. The appeal
confers the appellate court full jurisdiction over the
case and renders such court competent to examine
records, revise the judgment appealed from, increase
the penalty, and cite the proper provision of the penal
law."[22]
Guided by this consideration, the Court finds no
reason to overturn petitioner's conviction for the crime
of Fencing.
Section 2 of PD 1612 defines Fencing as "the act of
any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in
any other manner deal in any article, item, object or
anything of value which he knows, or should be known
to him, to have been derived from the proceeds of the
crime of robbery or theft."[23] The same Section also
states that a Fence "includes any person, firm,
association, corporation or partnership or other
organization who/which commits the act of fencing."[24]
The essential elements of the crime of fencing are as
follows: (a) a crime of robbery or theft has been
committed; (b) the accused, who is not a principal or
an accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or
anything of value, which has been derived from the
proceeds of the crime of robbery or theft; (c) the
accused knew or should have known that the said
article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or
theft; and (d) there is, on the part of one accused,
intent to gain for oneself or for another.[25] Notably,
Fencing is a malum prohibitum, and PD 1612 creates
a prima facie presumption of Fencing from evidence of
possession by the accused of any good, article, item,
object or anything of value, which has been the
subject of robbery or theft; and prescribes a higher
penalty based on the value of the property.[26]
In this case, the courts a quo correctly found that the
prosecution was able to establish beyond reasonable
doubt all the elements of the crime of Fencing, as it
was shown that: (a) Lariosa sold to petitioner the
subject items without authority and consent from his
employer, Tan, for his own personal gain, and abusing
the trust and confidence reposed upon him as a truck
helper;[27] (b) petitioner bought the subject items from
Lariosa and was in possession of the same; (c) under
the circumstances, petitioner should have been
forewarned that the subject items came from an illegal
source, as his transaction with Lariosa did not have
any accompanying delivery and official receipts, and
that the latter did not demand that such items be
replaced with empty bottles, contrary to common
practice among dealers of soft drinks; [28] and (d)
petitioner's intent to gain was made evident by the
fact that he bought the subject items for just
P50,000.00, lower than their value in the amount of
P52,476.00. "[T]he Court finds no reason to deviate
from the factual findings of the trial court, as affirmed
by the CA, as there is no indication that it overlooked,
misunderstood or misapplied the surrounding facts
and circumstances of the case. In fact, the trial court
was in the best position to assess and determine the
credibility of the witnesses presented by both parties,
and hence, due deference should be accorded to the
same."[29]
Anent the proper penalty to be imposed on petitioner,
pertinent portions of Section 3 of PD 1612 read:
Section 3. Penalties. - Any person guilty of fencing
shall be punished as hereunder indicated:
a) The penalty of prision mayor, if the value of the
property involved is more than 12,000 pesos but not
exceeding 22,000 pesos; if the value of such property
exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not
exceed twenty years. In such cases, the penalty shall
be termed reclusion temporal and the accessory
penalty pertaining thereto provided in the Revised
Penal Code shall also be imposed.
xxxx
Notably, while the crime of Fencing is defined and
penalized by a special penal law, the penalty provided
therein is taken from the nomenclature in the Revised
Penal Code (RPC). In Peralta v. People,[30] the Court
discussed the proper treatment of penalties found in
special penal laws vis-a-vis Act No. 4103,[31] otherwise
known as the "Indeterminate Sentence Law," viz.:
Meanwhile, Sec. 1 of Act No. 4103, otherwise known
as the Indeterminate Sentence Law (ISL), provides
that if the offense is ostensibly punished under a
special law, the minimum and maximum prison term
of the indeterminate sentence shall not be beyond
what the special law prescribed. Be that as it may, the
Court had clarified in the landmark ruling of People v.
Simon that the situation is different where although
the offense is defined in a special law, the penalty
therefor is taken from the technical nomenclature in
the RPC. Under such circumstance, the legal effects
under the system of penalties native to the Code
would also necessarily apply to the special law.[32]
Otherwise stated, if the special penal law adopts the
nomenclature of the penalties under the RPC, the
ascertainment of the indeterminate sentence will be
based on the rules applied for those crimes punishable
under the RPC.[33]
Applying the foregoing and considering that there are
neither mitigating nor aggravating circumstances
present in this case, the Court finds it proper to
sentence petitioner to suffer the penalty of
imprisonment for an indeterminate period of four (4)
years, two (2) months, and one (1) day of prision
correccional, as minimum, to fifteen (15) years
of reclusion temporal, as maximum.
At this point, the Court notes that as may be gleaned
from its whereas clauses, PD 1612 was enacted in
order to provide harsher penalties to those who would
acquire properties which are proceeds of the crimes of
Robbery or Theft, who prior to the enactment of said
law, were punished merely as accessories after the
fact of the said crimes.[34] This rationale was echoed
in Dizon-Pamintuan v. People[35] where the Court held
that while a Fence may be prosecuted either as an
accessory of Robbery/Theft or a principal for Fencing,
there is a preference for the prosecution of the latter
as it provides for harsher penalties:
Before P.D. No. 1612, a fence could only be
prosecuted for and held liable as an accessory, as the
term is defined in Article 19 of the Revised Penal Code.
The penalty applicable to an accessory is obviously
light under the rules prescribed in Articles 53, 55, and
57 of the Revised Penal Code, subject to the
qualification set forth in Article 60 thereof. Noting,
however, the reports from law enforcement agencies
that "there is rampant robbery and thievery of
government and private properties" and that "such
robbery and thievery have become profitable on the
part of the lawless elements because of the existence
of ready buyers, commonly known as fence, of stolen
properties," P.D. No. 1612 was enacted to "impose
heavy penalties on persons who profit by the effects of
the crimes of robbery and theft." Evidently, the
accessory in the crimes of robbery and theft could be
prosecuted as such under the Revised Penal Code or
under P.D. No. 1612. However, in the latter case, he
ceases to be a mere accessory but becomes
a principal in the crime of fencing. Elsewise stated, the
crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct
offenses. The state may thus choose to prosecute him
either under the Revised Penal Code or P.D. No. 1612,
although the preference for the latter would seem
inevitable considering that fencing is a malum
prohibitum, and P.D. No. 1612 creates a presumption
of fencing and prescribes a higher penalty based on
the value of the property.[36]
While PD 1612 penalizes those who acquire properties
which are proceeds of Robbery or Theft, its prescribed
penalties are similar to the latter crime in that they
are largely dependent on the value of the said
properties. In fact, a reading of Section 3 of PD 1612
and Article 309 of the RPC (which provides for the
prescribed penalties for the crime of Theft) reveals
that both provisions use the same graduations of
property value to determine the prescribed penalty; in
particular, if the value: (a) exceeds P22,000.00, with
additional penalties for each additional P10,000.00;
(b) is more than P12,000.00 but not exceeding
P22,000.00; (c) is more than P6,000.00 but not
exceeding P12,000.00; (d) is more than P200.00 but
not exceeding P6,000.00; (e) is more than P50.00 but
not exceeding P200.00; and (f) does not exceed
P5.00. However, with the recent enactment of
Republic Act No. 10951,[37] which adjusted the values
of the property and damage on which various
penalties are based, taking into consideration the
present value of money, as opposed to its archaic
values when the RPC was enacted in 1932,[38] the
graduation of values in Article 309 was substantially
amended, without any concomitant adjustment for PD
1612. This development would then result in instances
where a Fence, which is theoretically a mere accessory
to the crime of Robbery/Theft, will be punished more
severely than the principal of such latter crimes. This
incongruence in penalties therefore, impels an
adjustment of penalties.
However, while it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited
judicial legislation.[39] As the Court remains mindful of
the fact that the determination of penalties is a policy
matter that belongs to the legislative branch of the
government, it finds it prudent to instead, furnish both
Houses of Congress, as well as the President of the
Republic of the Philippines, through the Department of
Justice, pursuant to Article 5[40] of the RPC, copies of
this ruling in order to alert them on the aforestated
incongruence of penalties, all with the hope of arriving
at the proper solution to this predicament.
WHEREFORE, the petition is DENIED. The Decision
dated November 6, 2015 and the Resolution dated
June 8, 2016 of the Court of Appeals (CA) in CA-G.R.
CR No. 01126-MIN finding petitioner Ireneo
Cahulogan GUILTY beyond reasonable doubt of the
crime of Fencing defined and penalized under
Presidential Decree No. 1612, otherwise known as the
"Anti-Fencing Law,"
are AFFIRMED with MODIFICATION, sentencing
him to suffer the penalty of imprisonment for the
indeterminate period of four (4) years, two (2)
months, and one (1) day of prision correccional, as
minimum, to fifteen (15) years of reclusion temporal,
as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a
copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of
Justice, the President of the Senate, and the Speaker
of the House of Representatives.
SO ORDERED.
Carpio,* Acting C. J., (Chairperson), Peralta, Caguioa,
and Reyes, Jr., JJ., concur.
*
 Acting Chief Justice per Special Order No. 2539 dated
February 28, 2018.
[1] [14]
 Rollo, pp. 3-12.  See id. at 34.

[2] [15]
 Id. at 16-30. Penned by Associate Justice Rafael  See id. at 30-33.
Antonio M. Santos with Associate Justices Edgardo A.
[16]
Camello and Henri Jean Paul B. Inting, concurring.  See Notice of Appeal dated October 17, 2013;
records, pp. 211-212.
[3]
 Id. at 39-41. Penned by Associate Justice Rafael
[17]
Antonio M. Santos with Associate Justices Edgardo A.  Rollo, pp. 16-30.
Camello and Edgardo T. Lloren, concurring.
[18]
 See id. at 29.
[4]
 CA rollo, pp. 28-34. Penned by Presiding Judge
[19]
Jeoffre W. Acebido.  See id. at 20-29.

[5] [20]
 (March 2, 1979).  See motion for reconsideration dated January 12,
2016; id. at 31-37.
[6]
 Records, p. 2.
[21]
 Id. at 39-41.
[7]
 Id.
[22]
 See Rivac v. People, G.R. No. 224673, January 22,
[8]
 Id. at 17. 2018.

[9] [23]
 See rollo, pp. 18-19 and CA rollo, pp. 29-30.  See Section 2 (a) of PD 1612.

[10] [24]
 Rollo, p. 17 and CA rollo, p. 29.  See Section 2 (b) of PD 1612.

[11] [25]
 See Memorandum for the Accused dated June 18,  Ong v. People, 708 Phil. 565, 571 (2013);
2013; records, pp. 170-171. citing Capili v. CA, 392 Phil. 577, 592 (2000).

[12] [26]
 See rollo, p. 19 and CA rollo, p. 30.   Ong v. People; id. at 574; citing Dizon-Pamintuan
v. People, G.R. No. 111426, July 11, 1994, 234 SCRA
[13]
 CA rollo, pp. 28-34. 63, 72. See also Section 5 of PD 1612 which reads:

Section 5. Presumption of Fencing. — Mere possession
of any good, article, item, object, or anything of value
which has been the subject of robbery or thievery shall
be prima facieevidence of fencing.
[27]
 In Lim v. People (G.R. No. 211977, October 12,
2016, 806 SCRA 1, 12), it has been held that
conviction of a principal in the crime of theft is not
necessary for an accused to be found guilty of the
crime of Fencing.
[28]
 "[Circumstances normally exist to forewarn, for
instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of
robbery or theft. Such circumstances include the time
and place of the sale, both of which may not be in
accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact
that the seller is not regularly engaged in the business
of selling goods may likewise suggest the illegality of
their source, and therefore should caution the buyer.
This justifies the presumption found in Section 5 of
P.D. No. 1612 that 'mere possession of any
goods, . . ., object or anything of value which has
been the subject of robbery or thievery shall be prima
facie evidence of fencing' — a presumption that is,
according to the Court, 'reasonable for no other
natural or logical inference can arise from the
established fact of. . . possession of the proceeds of
the crime of robbery or theft.'" (Ong v. People, supra
note 25, at 573; citing Dela Torre v. COMELEC, 327
Phil. 1144, 1154-1155 [1996].)
[29]
 See Peralta v. People, G.R. No. 221991, August 30,
2017, citing People v. Matibag, 757 Phil. 286, 293
(2015).
[30]
 See id.
[31]
 Entitled "AN ACT TO PROVIDE FOR AN
INDETERMINATE SENTENCE AND PAROLE FOR ALL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE
COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A
BOARD OF INDETERMINATE SENTENCE AND TO
PROVIDE FUNDS THEREFOR, AND FOR OTHER
PURPOSES" (December 5, 1933).
[32]
 See Peralta v. People, supra note 29;
citing Quimvel v. People, G.R. No. 214497, April 18,
2017.
[33]
 See Peralta v. People, id.; citing Mabunot v. People,
GR. No. 204659, September 19, 2016, 803 SCRA 349,
364.
[34]
 The whereas clauses of PD 1612 read:
WHEREAS, reports from law enforcement agencies
reveal that there is rampant robbery and thievery of
government and private properties;
WHEREAS, such robbery and thievery have become
profitable on the part of the lawless elements because
of the existence of ready buyers, commonly known as
fence, of stolen properties;
WHEREAS, under existing law, a fence can be and shall report to the Chief Executive, through the
prosecuted only as an accessory after the fact and Department of Justice, the reasons which induce the
punished lightly; court to believe that said act should be made the
subject of penal legislation.
WHEREAS, it is imperative to impose heavy penalties
on persons who profit by the effects of the crimes of In the same way, the court shall submit to the Chief
robbery and theft. Executive, through the Department of Justice, such
[35]
statement as may be deemed proper, without
 Supra note 26.
suspending the execution of the sentence, when a
[36]
strict enforcement of the provisions of this Code would
 Id. at 71-72; citations omitted.
result in the imposition of a clearly excessive penalty,
[37]
taking into consideration the degree of malice and the
 Entitled "AN ACT ADJUSTING THE AMOUNT OR THE
injury caused by the offense.
VALUE OF PROPERTY AND DAMAGE ON WHICH A
PENALTY IS BASED, AND THE FINES IMPOSED UNDER
THE REVISED PENAL CODE, AMENDING FOR THE
PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS 'THE
REVISED PENAL CODE,' AS AMENDED" approved on
Batas.org
August 29, 2017.

[38]
 See Rivac v. People, G.R. No. 224673, January 22,
2018, supra note 22.

[39]
 Corpuz v. People, 734 Phil. 353, 425 (2014).

[40]
 Article 5 of the RPC reads:

Article 5. Duty of the court in connection with acts

which should be repressed but which are not covered
by the law, and in cases of excessive penalties. -
Whenever a court has knowledge of any act which it
may deem proper to repress and which is not
punishable by law, it shall render the proper decision,
 Supreme Court of the Philippines
230 Phil. 406  OSCAR VIOLAGO, PETITIONER, VS. HONORABLE JUDGE
EN BANC
G.R. No. 63419, December 18, 1986
FLORENTINA A. LOZANO, PETITIONER, VS. THE
HONORABLE ANTONIO M. MARTINEZ, IN HIS
CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL
COURT, NATIONAL CAPITAL JUDICIAL REGION,
BRANCH XX, MANILA, AND THE HONORABLE JOSE B.
FLAMINIANO, IN HIS CAPACITY AS CITY FISCAL OF
MANILA, RESPONDENTS.  [G.R. NOS. 75812-13. DECEMBER 18, 1986]
[G.R. NOS. 66839-42. DECEMBER 18, 1986]
LUZVIMINDA F. LOBATON, PETITIONER, VS.
HONORABLE GLICERIO L. CRUZ, IN HIS CAPACITY AS
PRESIDING EXECUTIVE JUDGE, BRANCH V, REGION IV,
REGIONAL TRIAL COURT, SITTING AT LEMERY,
BATANGAS, THE PROVINCIAL FISCAL OF BATANGAS,
AND MARIA LUISA TORDECILLA, RESPONDENTS.  [G.R. NOS. 75765-67. DECEMBER 18, 1986]
[G.R. NO. 71654. DECEMBER 18, 1986]
ANTONIO DATUIN AND SUSAN DATUIN, PETITIONERS,
VS. HONORABLE JUDGE ERNANI C. PANO, REGIONAL
TRIAL COURT, QUEZON CITY, BRANCH LXXXVIII,
HONORABLE CITY FISCAL OF QUEZON CITY,
RESPONDENTS. 
[G.R. NOS. 74524-25. DECEMBER 18, 1986]
ERNANI C. PANO, REGIONAL TRIAL COURT, QUEZON
CITY, BRANCH LXXXVIII, HONORABLE CITY FISCAL OF
QUEZON CITY, RESPONDENTS. 
[G.R. NOS. 75122-49. DECEMBER 18, 1986]
ELINOR ABAD, PETITIONER, VS. THE HONORABLE
NICOLAS A. GEROCHI, JR., IN HIS CAPACITY AS
PRESIDING JUDGE, REGIONAL TRIAL COURT,
NATIONAL CAPITAL JUDICIAL REGION, BRANCH 139,
MAKATI, AND FEDERICO L. MELOCOTTON, JR., IN HIS
CAPACITY AS TRIAL FISCAL, REGIONAL TRIAL COURT,
BRANCH 139, MAKATI, RESPONDENTS. 
AMABLE R. AGUILUZ VII AND SYLVIA V. AGUILUZ,
SPOUSES, PETITIONERS, VS. HONORABLE PRESIDING
JUDGE OF BRANCH 154, NOW VACANT BUT
TEMPORARILY PRESIDED BY HONORABLE ASAALI S.
ISNANI, BRANCH 153, COURT OF FIRST INSTANCE OF
PASIG, METRO MANILA, RESPONDENT. 
LUIS M. HOJAS, PETITIONER, VS. HON. JUDGE SENEN
PENARANDA, PRESIDING JUDGE, REGIONAL TRIAL
COURT OF CAGAYAN DE ORO CITY, BRANCH XX,
HONORABLE JUDGE ALFREDO LAGAMON, PRESIDING
JUDGE, REGIONAL TRIAL COURT OF CAGAYAN DE ORO
CITY, BRANCH XXII, HONORABLE CITY FISCAL NOLI T.
CATHI, CITY FISCAL OF CAGAYAN DE ORO CITY,
RESPONDENTS.  that the instant petitions should be entertained and the constitutional
[G.R. NO. 75789. DECEMBER 18, 1986]
THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS.
HON. DAVID G. NITAFAN, PRESIDING JUDGE, REGIONAL
TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION,
BRANCH 52, MANILA AND THELMA SARMIENTO,
RESPONDENTS.  we do not find it necessary to delve into the specifics of the
DECISION
YAP, J.:
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short),
popularly known as the Bouncing Check Law, which was approved
on April 3, 1979, is the sole issue presented by these petitions for
decision.  The question is definitely one of first impression in our
jurisdiction.
These petitions arose from cases involving prosecution of offenses
under the statute.  The defendants in those cases moved seasonably
to quash the informations on the ground that the acts charged did not
constitute an offense, the statute being unconstitutional.  The motions
were denied by the respondent trial courts, except in one case, which
is the subject of G.R. No. 75789, wherein the trial court declared the
law unconstitutional and dismissed the case.  The parties adversely
affected have come to us for relief.
As a threshold issue the former Solicitor General, in his comment on
the petitions, maintained the posture that it was premature for the
accused to elevate to this Court the orders denying their motions to
quash, these orders being interlocutory.  While this is correct as a
general rule, we have in justifiable cases intervened to review the
lower court's denial of a motion to quash.[1] In view of the
importance of the issue involved here, there is no doubt in our mind
challenge to BP 22 resolved promptly, one way or the other, in order
to put to rest the doubts and uncertainty that exist in legal and
judicial circles and the general public which have unnecessarily
caused a delay in the disposition of cases involving the enforcement
of the statute.
For the purpose of resolving the constitutional issue presented here,
informations involved in the cases which are the subject of the
petitions before us.[2] The language of BP 22 is broad enough to
cover all kinds of checks, whether present dated or postdated, or
whether issued in payment of pre-existing obligations or given in
mutual or simultaneous exchange for something of value.
I
BP 22 punishes a person "who makes or draws and issues any check
on account or for value, knowing at the time of issue that he does not
have sufficient funds in or credit with the drawee bank for the
payment of said check in full upon presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of
funds or credit or would have been dishonored for the same reason
had not the drawer, without any valid reason, ordered the bank to
stop payment." The penalty prescribed for the offense is
imprisonment of not less than 30 days nor more than one year or a
fine of not less than the amount of the check nor more than double
said amount, but in no case to exceed P200,000.00, or both such fine
and imprisonment at the discretion of the court. [3]
The statute likewise imposes the same penalty on "any person who,
having sufficient funds in or credit with the drawee bank when he
makes or draws and issues a check, shall fail to keep sufficient funds
or to maintain a credit to cover the full amount of the check if
presented within a period of ninety (90) days from the date appearing
thereon, for which reason it is dishonored by the drawee bank. [4]
An essential element of the offense is "knowledge" on the part of the
maker or drawer of the check of the insufficiency of his funds in or
credit with the bank to cover the check upon its presentment.  Since
this involves a state of mind difficult to establish, the statute itself
creates a prima facie presumption of such knowledge where payment
of the check "is refused by the drawee because of insufficient funds
in or credit with such bank when presented within ninety (90) days
from the date of the check.[5] To mitigate the harshness of the law in
its application, the statute provides that such presumption shall not
arise if within five (5) banking days from receipt of the notice of
dishonor, the maker or drawer makes arrangements for payment of
the check by the bank or pays the holder the amount of the check.
Another provision of the statute, also in the nature of a rule of
evidence, provides that the introduction in evidence of the unpaid
and dishonored check with the drawee bank's refusal to pay "stamped
or written thereon or attached thereto, giving the reason therefor,"
shall constitute prima facie proof of "the making or issuance of said
check, and the due presentment to the drawee for payment and the
dishonor thereof . . . for the reason written, stamped or attached by
the drawee on such dishonored check."[6]
The presumptions being merely prima facie, it is open to the accused
of course to present proof to the contrary to overcome the said
presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of issuing
checks that are worthless, i.e. checks that end up being rejected or
dishonored for payment.  The practice, as discussed later, is
proscribed by the state because of the injury it causes to the public
interests.
Before the enactment of BP 22, provisions already existed in our
statute books which penalize the issuance of bouncing or rubber
checks.  Criminal law has dealt with the problem within the context
of crimes against property punished as "estafa" or crimes involving
fraud and deceit.  The focus of these penal provisions is on the
damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines from
1887 until it was replaced by the Revised Penal Code in 1932,
contained provisions penalizing, among others, the act of defrauding
another through false pretenses.  Art. 335 punished a person who
defrauded another "by falsely pretending to possess any power,
influence, qualification, property, credit, agency or business, or by
means of similar deceit." Although no explicit mention was made
therein regarding checks, this provision was deemed to cover within
its ambit the issuance of worthless or bogus checks in exchange for
money.[7]
In 1926, an amendment was introduced by the Philippine
Legislature, which added a new clause (paragraph 10) to Article 335
of the old Penal Code, this time referring in explicit terms to the
issuance of worthless checks.  The amendment penalized any person
who:  1) issues a check in payment of a debt or for other valuable
consideration, knowing at the time of its issuance that he does not
have sufficient funds in the bank to cover its amount, or 2)
maliciously signs the check differently from his authentic signature
as registered at the bank in order that the latter would refuse to honor
it; or 3) issues a postdated check and, at the date set for its payment,
does not have sufficient deposit to cover the same. [8]
In 1932, as already adverted to, the old Penal Code was superseded
by the Revised Penal Code.[9] The above provisions, in amended
form, were incorporated in Article 315 of the Revised Penal Code
defining the crime of estafa.  The revised text of the provision read
as follows:
"Art. 315.  Swindling (estafa).  - Any person who shall defraud
another by any of the means mentioned herein-below shall be
punished by:
x x x              x x x            x x x
2.      By means of any of the following false pretenses or fraudulent
acts executed prior to or simultaneously with the commission of the
fraud:
a.      By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business or
imaginary transactions, or by means of other similar deceits;
x x x              x x x            x x x
d.   By postdating a check, or issuing a check in payment of an
obligation the offender knowing that at the time he had no funds in
the bank, or the funds deposited by him were not sufficient to cover
the amount of the check without informing the payee of such
circumstances."
The scope of paragraph 2 (d), however, was deemed to exclude
checks issued in payment of pre-existing obligations. [10] The rationale
of this interpretation is that in estafa, the deceit causing the
defraudation must be prior to or simultaneous with the commission
of the fraud.  In issuing a check as payment for a pre-existing debt,
the drawer does not derive any material benefit in return or as
consideration for its issuance.  On the part of the payee, he had
already parted with his money or property before the check is issued
to him, hence, he is not defrauded by means of any "prior" or
"simultaneous" deceit perpetrated on him by the drawer of the check.
With the intention of remedying the situation and solving the
problem of how to bring checks issued in payment of pre-existing
debts within the ambit of Art. 315, an amendment was introduced by
the Congress of the Philippines in 1967[11], which was enacted into
law as Republic Act No. 4885, revising the aforesaid proviso to read
as follows:
"(d) By postdating a check, or issuing a check in payment of an
obligation when the offender had no funds in the bank, or his funds
deposited therein were lot sufficient to cover the amount of the
check.  The failure of the drawer of the check to deposit the amount
necessary to cover his check within three (3) days from receipt of
notice from the bank and/or the payee or holder that said check has
been dishonored for lack or insufficiency of funds shall be prima
facie evidence of deceit constituting false pretense or fraudulent act."
However, the adoption of the amendment did not alter the situation
materially.  A divided Court held in People vs. Sabio, Jr.[12] that
Article 315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again relying
on the concept underlying the crime of estafa through false pretenses
or deceit - which is, that the deceit or false pretenses must be prior to
or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of pre-
existing debts,[13] the amended provision evidently failed to cope with
the real problem and to deal effectively with the evil that it was
intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop, the
then Interim Batasan confronted the problem squarely.  It opted to
take a bold step and decided to enact a law dealing with the problem
of bouncing or worthless checks, without attaching the law's
umbilical cord to the existing penal provisions on estafa.  BP 22
addresses the problem directly and frontally and makes the act of
issuing a worthless check malum prohibitum.[14]
The question now arises:  Is BP 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within
the ambit of the law on estafa did not evoke any constitutional
challenge.  In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22 insist that:  (1) it
offends the constitutional provision forbidding imprisonment for
debt; (2) it impairs freedom of contract; (3) it contravenes the equal
protection clause; (4) it unduly delegates legislative and executive
powers; and (5) its enactment is flawed in that during its passage the
Interim Batasan violated the constitutional provision prohibiting
amendments to a bill on Third Reading.
The constitutional challege to BP 22 posed by petitioners deserves a
searching and thorough scrutiny and the most deliberate
consideration by the Court, involving as it does the exercise of what
has been described as "the highest and most delicate function which
belongs to the judicial department of the government." [15]
As we enter upon the task of passing on the validity of an act of a co-
equal and coordinate branch of the government, we need not be
reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid.  Every
presumption must be indulged in favor of its constitutionality.  This
is not to say that we approach our task with diffidence or timidity.  constitutions of various states of the Union.[17]
Where it is clear that the legislature has overstepped the limits of its
authority under the constitution, we should not hesitate to wield the
axe and let it fall heavily, as fall it must, on the offending statute.
III
Among the constitutional objections raised against BP 22, the most
serious is the alleged conflict between the statute and the
constitutional provision forbidding imprisonment for debt.  It is
contended that the statute runs counter to the inhibition in the Bill of
Rights which states, "No person shall be imprisoned for debt or non-
payment of a poll tax."[16]Petitioners insist that, since the offense
under BP 22 is consummated only upon the dishonor or non-
payment of the check when it is presented to the drawee bank, the
statute is really a "bad debt law" rather than a "bad check law". 
What it punishes is the non-payment of the check, not the act of
issuing it.  The statute, it is claimed, is nothing more than a veiled
device to coerce payment of a debt under the threat of penal sanction.
First of all, it is essential to grasp the essence and scope of the
constitutional inhibition invoked by petitioners.  Viewed in its
historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually during
the early part of the nineteenth century in the various states of the
American Union as a result of the people's revulsion at the cruel and
inhumane practice, sanctioned by common law, which permitted
creditors to cause the incarceration of debtors who could not pay
their debts.  At common law, money judgments arising from actions
for the recovery of a debt or for damages from breach of a contract
could be enforced against the person or body of the debtor by writ of
capias ad satisfaciendum.  By means of this writ, a debtor could be
seized and imprisoned at the instance of the creditor until he makes
the satisfaction awarded.  As a consequence of the popular ground
swell against such a barbarous practice, provisions forbidding
imprisonment for debt came to be generally enshrined in the
This humanitarian provision was transported to our shores by the
Americans at the turn of the century and embodied in our organic
laws.[18] Later, our fundamental law outlawed not only imprisonment
for debt, but also the infamous practice, native to our shore, of
throwing people in jail for non-payment of the cedula or poll tax. [19]
The reach and scope of this constitutional safeguard have been the
subject of judicial definition, both by our Supreme Court[20] and by
American state courts.[21] Mr. Justice Malcolm, speaking for the
Supreme Court in Ganaway vs. Quillen,[22] stated:  "The 'debt'
intended to be covered by the constitutional guaranty has a well-
defined meaning.  Organic provisions relieving from imprisonment
for debt, were intended to prevent commitment of debtors to prison
for liabilities arising from actions ex contractu.  The inhibition was
never meant to include damages arising in actions ex delicto, for the
reason that damages recoverable therein do not arise from any
contract entered into between the parties but are imposed upon the
defendant for the wrong he has done and are considered as
punishment, nor to fines and penalties imposed by the courts in
criminal proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the
Code of Procedure in Civil Actions (1909) which authorized the
arrest of the defendant in a civil case on grounds akin to those which
justify the issuance of a writ of attachment under our present Rules
of Court, such as imminent departure of the defendant from the
Philippines with intent to defraud his creditors, or concealment,
removal or disposition of properties in fraud of creditors, etc.  The
Court, in that case, declared the detention of the defendant unlawful,
being violative of the constitutional inhibition against imprisonment
for debt, and ordered his release.  The Court, however, refrained
from declaring the statutory provision in question unconstitutional.
Closer to the case at bar is People v. Vera Reyes,[23] wherein a
statutory provision which made illegal and punishable the refusal of
an employer to pay, when he can do so, the salaries of his employees
or laborers on the fifteenth or last day of every month or on Saturday
every week, was challenged for being violative of the constitutional
prohibition against imprisonment for debt.  The constitutionality of
the law in question was upheld by the Court, it being within the
authority of the legislature to enact such a law in the exercise of the
police power.  It was held that "one of the purposes of the law is to
suppress possible abuses on the part of the employers who hire
laborers or employees without paying them the salaries agreed upon
for their services, thus causing them financial difficulties." The law
was viewed not as a measure to coerce payment of an obligation,
although obviously such could be its effect, but to banish a practice
considered harmful to public welfare.
IV
Has BP 22 transgressed the constitutional inhibition against
imprisonment for debt?  To answer the question, it is necessary to
examine what the statute prohibits and punishes as an offense.  Is it
the failure of the maker of the check to pay a debt?  Or is it the
making and issuance of a worthless check in payment of a debt? 
What is the gravamen of the offense?  This question lies at the heart
of the issue before us.
The gravamen of the offense punished by BP 22 is the act of making
and issuing a worthless check or a check that is dishonored upon its
presentation for payment.  It is not the non-payment of an obligation
which the law punishes.  The law is not intended or designed to
coerce a debtor to pay his debt.  The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and
putting them in circulation.  Because of its deleterious effects on the
public interest, the practice is proscribed by the law.  The law
punishes the act not as an offense against property, but an offense
against public order.
Admittedly, the distinction may seem at first blush to appear elusive
and difficult to conceptualize.  But precisely in the failure to perceive
the vital distinction lies the error of those who challenge the validity
of BP 22.
It may be constitutionally impermissible for the legislature to
penalize a person for non-payment of a debt ex contractu.  But
certainly it is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public
welfare.  Acts mala in se are not the only acts which the law can
punish.  An act may not be considered by society as inherently
wrong, hence not malum in se, but because of the harm that it inflicts
on the community, it can be outlawed and criminally punished
as malum prohibitum.  The state can do this in the exercise of its
police power.

The police power of the state has been described as "the most
essential, insistent and illimitable of powers" which enables it to
prohibit all things hurtful to the comfort, safety and welfare of
society.[24] It is a power not emanating from or conferred by the
constitution, but inherent in the state, plenary, "suitably vague and
far from precisely defined, rooted in the conception that man in
organizing the state and imposing upon the government limitations to
safeguard constitutional rights did not intend thereby to enable
individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace,
safety, good order and welfare."[25]
The enactment of BP 22 is a declaration by the legislature that, as a
matter of public policy, the making and issuance of a worthless
check is deemed a public nuisance to be abated by the imposition of
penal sanctions.
It is not for us to question the wisdom or impolicy of the statute.  It is
sufficient that a reasonable nexus exists between means and end.  justifies the legitimate concern of the state in preserving the integrity
Considering the factual and legal antecedents that led to the adoption
of the statute, it is not difficult to understand the public concern
which prompted its enactment.  It had been reported that the
approximate value of bouncing checks per day was close to 200
million pesos, and thereafter when overdrafts were banned by the
Central Bank, it averaged between 50 million to 80 million pesos a
day.[26]
By definition, a check is a bill of exchange drawn on a bank and
payable on demand.[27] It is a written order on a bank, purporting to
be drawn against a deposit of funds for the payment at all events, of a
sum of money to a certain person therein named or to his order or to
cash, and payable on demand.[28] Unlike a promissory note, a check is
not a mere undertaking to pay an amount of money.  It is an order
addressed to a bank and partakes of a representation that the drawer
has funds on deposit against which the check is drawn, sufficient to
ensure payment upon its presentation to the bank.  There is therefore
an element of certainty or assurance that the instrument will be paid
upon presentation.  For this reason, checks have become widely
accepted as a medium of payment in trade and commerce.  Although
not legal tender, checks have come to be perceived as convenient
substitutes for currency in commercial and financial transactions. 
The basis or foundation of such perception is confidence.  If such
confidence is shaken, the usefulness of checks as currency
substitutes would be greatly diminished or may become nil.  Any
practice therefore tending to destroy that confidence should be
deterred, for the proliferation of worthless checks can only create
havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the entire
money supply of the country, roughly totalling P32.3 billion, consists
of peso demand deposits; the remaining two-thirds consists of
currency in circulation.[29] These demand deposits in the banks
constitute the funds against which, among others, commercial papers
like checks, are drawn.  The magnitute of the amount involved amply
of the banking system.  Flooding the system with worthless checks is
like pouring garbage into the bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the
private interests of the parties directly involved in the transaction and
touches the interests of the community at large.  The mischief it
creates is not only a wrong to the payee or holder, but also an injury
to the public.  The harmful practice of putting valueless commercial
papers in circulation, multiplied a thousandfold, can very well
pollute the channels of trade and commerce, injure the banking
system and eventually hurt the welfare of society and the public
interest.  As aptly stated -[30]
"The 'check flasher' does a great deal more than contract a debt; he
shakes the pillars of business; and to my mind, it is a mistaken
charity of judgment to place him in the same category with the
honest man who is unable to pay his debts, and for whom the
constitutional inhibition against 'imprisonment for debt, except in
cases of fraud' was intended as a shield and not a sword."
In sum, we find the enactment of BP 22 a valid exercise of the police
power and is not repugnant to the constitutional inhibition against
imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining
in the various states of the United States on the constitutionality of
the "worthless check" acts.[31] It is needless to warn that foreign
jurisprudence must be taken with abundant caution.  A caveat to be
observed is that substantial differences exist between our statute and
the worthless check acts of those states where the jurisprudence have
evolved.  One thing to remember is that BP 22 was not lifted bodily
from any existing statute.  Furthermore, we have to consider that
judicial decisions must be read in the context of the facts and the law
involved and, in a broader sense, of the social, economic and
political environment - - in short, the milieu - - under which they
were made.  We recognize the wisdom of the old saying that what is
sauce for the goose may not be sauce for the gander.
As stated elsewhere, police power is a dynamic force that enables the
state to meet the exigencies of changing times.  There are occasions
when the police power of the state may even override a constitutional
guaranty.  For example, there have been cases wherein we held that
the constitutional provision on non-impairment of contracts must
yield to the police power of the state.[32] Whether the police power
may override the constitutional inhibition against imprisonment for
debt is an issue we do not have to address.  This bridge has not been
reached, so there is no occasion to cross it.
We hold that BP 22 does not conflict with the constitutional
inhibition against imprisonment for debt.
V power to legislate, or the power to make laws,[35] which means, as
We need not detain ourselves lengthily in the examination of the
other constitutional objections raised by petitioners, some of which
are rather flimsy.
We find no valid ground to sustain the contention that BP 22 impairs
freedom of contract.  The freedom of contract which is
constitutionally protected is freedom to enter into "lawful" contracts. 
Contracts which contravene public policy are not lawful. [33] Besides,
we must bear in mind that checks can not be categorized as mere
contracts.  It is a commercial instrument which, in this modern day
and age, has become a convenient substitute for money; it forms part
of the banking system and therefore not entirely free from the
regulatory power of the state.
Neither do we find substance in the claim that the statute in question
denies equal protection of the laws or is discriminatory, since it
penalizes the drawer of the check, but not the payee.  It is contended
that the payee is just as responsible for the crime as the drawer of the
check, since without the indispensable participation of the payee by
his acceptance of the check there would be no crime.  This argument
is tantamount to saying that, to give equal protection, the law should
punish both the swindler and the swindled.  The petitioners' posture
ignores the well-accepted meaning of the clause "equal protection of
the laws".  The clause does not preclude classification of individuals,
who may be accorded different treatment under the law as long as
the classification is not unreasonable or arbitrary. [34]
It is also suggested that BP 22 constitutes undue or improper
delegation of legislative powers, on the theory that the offense is not
completed by the sole act of the maker or drawer but is made to
depend on the will of the payee.  If the payee does not present the
check to the bank for payment but instead keeps it, there would be no
crime.  The logic of the argument stretches to absurdity the meaning
of "delegation of legislative power".  What cannot be delegated is the
applied to the present case, the power to define the offense sought to
be punished and to prescribe the penalty.  By no stretch of logic or
imagination can it be said that the power to define the crime and
prescribe the penalty therefor has been in any manner delegated to
the payee.  Neither is there any provision in the statute that can be
construed, no matter how remotely, as undue delegation of executive
power.  The suggestion that the statute unlawfully delegates its
enforcement to the offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article VII
of the 1973 Constitution was violated by the legislative body when it
enacted BP 22 into law.  This constitutional provision prohibits the
introduction of amendments to a bill during the Third Reading.  It is
claimed that during its Third Reading, the bill which eventually
became BP 22 was amended in that the text of the second paragraph
of Section 1 of the bill as adopted on Second Reading was altered or
changed in the printed text of the bill submitted for approval on
Third Reading.
A careful review of the record of the proceedings of the Interim
Batasan on this matter shows that, indeed, there was some confusion
among Batasan Members on what was the exact text of the paragraph
in question which the body approved on Second Reading.[36] Part of
the confusion was due apparently to the fact that during the
deliberations on Second Reading (the amendment period),
amendments were proposed orally and approved by the body or
accepted by the sponsor, hence, some members might not have
gotten the complete text of the provisions of the bill as amended and
approved on Second Reading.  However, it is clear from the records
that the text of the second paragraph of Section 1 of BP 22 is the text
which was actually approved by the body on Second Reading on
February 7, 1979, as reflected in the approved Minutes for that day.   Section 1, first paragraph.
In any event, before the bill was submitted for final approval on
Third Reading, the Interim Batasan created a Special Committee to
investigate the matter, and the Committee in its report, which was
approved by the entire body on March 22, 1979, stated that “the
clause in question was . . . an authorized amendment of the bill and
the printed copy thereof reflects accurately the provision in question
as approved on Second Reading.[37] We therefore find no merit in the
petitioners' claim that in the enactment of BP 22 the provisions of
Section 9 (2) of Article VIII of the 1973 Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R.
No. 75789 and setting aside the order of the respondent Judge dated
August 19, 1986.  The petitions in G.R. Nos. 63419, 66839-42,
71654, 74524-25, 75122-49, 75812-13 and 75765-67 are hereby dis-
missed and the temporary restraining order issued in G.R. Nos.
74524-25 is lifted.  With costs against private petitioners.
SO ORDERED.
Teehankee, C.J., Feria, Fernan, Narvasa, Melencio-Herrera,
Alampay, Gutierrez, Jr., Cruz, Paras, and Feliciano, JJ., concur.
 Salonga v. Cruz Pano, 134 SCRA 438; Mean v. Argel, 115 SCRA
[1]
256; Yap v. Lutero, 105 Phil. 3007; Pineda and Ampil
Manufacturing Co. v. Bartolome, 95 Phil. 930; People v. Zulueta, 89
Phil. 880; Newsweek, Inc. v. Intermediate Appellate Court, G.R. No.
63559, May 30, 1986, 142 SCRA 171.
 Postdated checks are involved in G.R. Nos. 66839-42, G.R. No.
[2]
71654 and G.R. No. 75789, present dated checks in G.R. No. 63419
and G.R. Nos. 75812-13, and a mix of present dated and postdated
checks in G.R. Nos. 74524-25 and G.R. Nos. 7576567.
[3]
 Id., second paragraph.
[4]
 Section 2.
[5]
 Section 3.
[6]
  16-A Am. Jur. 2d, 566-574.
[21]

 U.S. v. Mendezona, 12 Phil. 72; U.S. v. Lee, 39 Phil. 466.

[7]

 42 Phil. 805, 807-808.

[22]

 Act No. 3313, approved on December 3, 1926.

[8]

 67 Phil. 187, 190.

[23]

 Act No. 3815, which was approved on December 8, 1930, but took
[9]

effect on January 1, 1932.  Smith, Bell & Co. v. National (1919), 40 Phil. 136; Rubi v. Prov.
[24]

Bd. of Mindoro (1919).

 People v. Lilius, 59 Phil. 339; People v. Quesada, 60 Phil. 515;
[10]

People v. Fortuno, 73 Phil. 407.  Fernando, J. in Edu v. Ericta, 35 SCRA 481.

[25]

[11]
 Senate Bill No. 413, sponsored by Sen. Ambrosio Padilla.  Dissenting Opinion, Antonio, J. in People v. Sabio, Jr., supra, p.
[26]

600.
[12]
 86 SCRA 568.
 Section 185, Negotiable Instruments Law.
[27]

 Cited in Dissenting Opinion, Antonio, J. in People v. Sabio,

[13]

Jr., supra, p. 600.  Black's Law Dictionary (5th Ed.) p. 215.

[28]

 The offense is punished not as a crime against property, but

[14]
 CB Review, August, 1986, p. 6.  For example, for the month of
[29]

against public interest.  See Record of Batasan, Vol. 3, P.B. No. 70. August, 1986, the total money supply was P32.326 billion, of which
P21.640 billion represented currency in circulation and P10.677
[15]
 State v. Manuel, 20 N.C. 144. billion, peso demand deposits.
[16]
 Section 13, Article IV, 1973 Constitution.  Stacy, C.J., concurring in State v. Yarboro (1927) 194 N.C. 498
[30]

140 S.E. 216, 220.

 For a survey of the constitutional provisions of various American
[17]

States, see Tan Cong v. N. L. Stewart, 42 Phil. 809.  For a survey of decisions on the subject, see Annotations, 23
[31]

A.L.R. 459 and 76 A.L.R. 1229, Constitutionality upheld:  Frazier v.

[18]
 Philippine Bill of 1902; Jones Law (1916). State (1931) 135 So. 280; Ex parte Rosencratz (1931) 299 Pac.
15; Carter v. Lowry (1929) 167 Ga. 151 S.E. 23; Caughlan v.
 1935 Constitution, Art. III, Sec. 1 (12); 1973 Constitution, Art.
[19]
State (1927) 22 Ala. 220, 114 So. 280; State v. Yarboro (1927) 194
IV, Sec. 13. N.C. 498, 140, S.E. 216; State v. Avery (1922) 207 Pac. 838, 23
A.L.R. 453; Hollis v. State (1921) 152 Ga. 192, 108 S.E.
 Tan Cong vs. N.L. Stewart (1907) 42 Phil. 809; Ganaway v.
[20]
783; McQuagge v. State (1920) 80 Fla. 768, 87 So. 60; State v.
Quillen (1922), 42 Phil. 815. Pilling (1909) 53 Wash. 464, 132 Am. St. Contra:  State v.
Nelson(1931) 237 N.W. 766, 76 A.L.R. 1226; Burnham v.
Com. (1929) 228 Ky. 410, 15 S.W. (2d) 256; Ward v. Com. (1929)
228 Ky 468, 15 S.W. (2d) 276; Neidlinger v. State (1916) 17 Ga.
App. 811, 88 S.E. 687; Carr v. State (1895) 106 Ala. 35, 34 L.R.A.
634.

 Phil. American Life Insurance Co. v. Auditor General, 22 SCRA

[32]

135.

 Article 1409, Civil Code.

[33]

 Tanada and Fernando, Constitution of the Phil. (1949 ed.) p. 534;

[34]

Chong v. Hernandez, 101 Phil. 1155 (1952); Co Chiong v. Cuaderno,

83 Phil. 242 (1949).

 People v. Vera, 65 Phil. 56.

[35]

 Record of the Batasan, Vol. 3, R.B. No. 91 and No. 92.

[36]

 Ibid., Vol. 4, R.B. No. 120, page 185.

[37]

Batas.org 
 Supreme Court of the Philippines
42 Phil. 766  the obligation of a contract, and that for all of said reasons the
G. R. No. 18208, February 14, 1922
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS.
VICENTE DIAZ CONDE AND APOLINARIA R. DE CONDE,
DEFENDANTS AND APPELLANTS.
DECISION
JOHNSON, J.:
It appears from the record that on the 6th day of May, 1921, a
complaint was presented in the Court of First Instance of the city of
Manila, charging the defendants with a violation of the Usury Law
(Act No. 2655). Upon said complaint they were each arrested,
arraigned, and pleaded not guilty. The cause was finally brought on
for trial on the 1st day of September, 1921. At the close of the trial,
and after a consideration of the evidence adduced, the Honorable M.
V. del Rosario, judge, found that the defendants were guilty of the
crime charged in the complaint and sentenced each of them to pay a
fine of P120 and, in case of insolvency, to suffer subsidiary
imprisonment in accordance with the provisions of the law. From
that sentence each of the defendants appealed to this court.
The appellants now contend: (a) That the contract upon which the
alleged usurious interest was collected was executed before Act No.
2655 was adopted; (b) that at the time said contract was made
(December 30, 1915), there was no usury law in force in the
Philippine Islands; (c) that said Act No. 2655 did not become
effective until the 1st day of May, 1916, or four months and a half
after the contract in question was executed; (d) that said law could
have no retroactive effect or operation, and (e) that said law impairs
judgment imposed by the lower court should be revoked; that the
complaint should be dismissed, and that they should each be
discharged from the custody of the law.
The essential facts constituting the basis of the criminal action are
not in dispute, and may be stated as follows: (1) That on the 30th day
of December, 1915, the alleged offended persons Bartolome
Oliveros and Engracia Lianco executed and delivered to the
defendants a contract (Exhibit B) evidencing the fact that the former
had borrowed from the latter the sum of P300, and (2) that, by virtue
of the terms of said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to the defendants
interest at the rate of five per cent (5%) per month, payable within
the first ten days of each and every month, the first payment to be
made on the 10th day of January, 1916. There were other terms in
the contract which, however, are not important for the decision in the
present case.
The lower court, in the course of its opinion, stated that at the time of
the execution and delivery of said contract (Exhibit B), there was no
law in force in the Philippine Islands punishing usury; but, inasmuch
as the defendants had collected a usurious rate of interest after the
adoption of the Usury Law in the Philippine Islands (Act No. 2655),
they were guilty of a violation of that law and should be punished in
accordance with its provisions.
The law, we think, is well established that when a contract contains
an obligation to pay interest upon the principal, the interest thereby
becomes part of the principal and is included within the promise to
pay. In other words, the obligation to pay interest on money due
under a contract, be it express or implied, is a part of the obligation
of the contract. Laws adopted after the execution of a contract,
changing or altering the rate of interest, cannot be made to apply to
such contract without violating the provisions of the constitution
which prohibit the adoption of a law "impairing the obligation of
contract." (8 Cyc, 996; 12 Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to
perform their agreement if it is not contrary to the law of the land,
morals or public order. That law must govern and control the
contract in every aspect in which it is intended to bear upon it,
whether it affect its validity, construction, or discharge. Any law
which enlarges, abridges, or in any manner changes the intention of
the parties, necessarily impairs the contract itself. If a law impairs the
obligation of a contract, it is prohibited by the Jones Law, and is null
and void. The laws in force in the Philippine Islands prior to any
legislation by the American sovereignty, prohibited the Legislature
from giving to any penal law a retroactive effect unless such law was
favorable to the person accused. (Articles 21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability or disability, or
giving a new right of action, must not be construed as having a
retroactive effect. It is an elementary rule of contract that the laws in
force at the time the contract was made must govern its interpretation
and application. Laws must be construed prospectively and not
retrospectively. If a contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation. If that were permitted
then the obligations of a contract might be impaired, which is
prohibited by the organic law of the Philippine Islands. ( U. S. vs.
Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato
and Gonzales Villa, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to the defendant, are
prohibited in this jurisdiction. Every law that makes an action, done
before the passage of the law, and which was innocent when done,
criminal, and punishes such action, is an ex post facto law. In the
present case Act No. 2655 made an act which had been done before
the law was adopted, a criminal act, and to make said Act applicable
to the act complained of would be to give it an ex post facto
operation. The Legislature is prohibited from adopting a law which
will make an act done before its adoption a crime. A law may be
given a retroactive effect in civil action, providing it is curative in
character, but ex post facto laws are absolutely prohibited unless its
retroactive effect is favorable to the defendant.
For the reason, therefore, that the acts complained of in the present
case were legal at the time of their occurrence, they cannot be made
criminal by any subsequent or ex post facto legislation. What the
courts may say, considering the provisions of article 1255 of the
Civil Code, when a civil action is brought upon said contract, cannot
now be determined, A contract may be annulled by the courts when
it is shown that it is against morals or public order.
For all of the foregoing reasons, we are of the opinion, and so decide,
that the acts complained of by the defendants did not constitute a
crime at the time they were committed, and therefore the sentence of
the lower court should be, and is hereby, revoked; and it is hereby
ordered and decreed that the complaint be dismissed, and that the
defendants be discharged from the custody of the law, with costs de
oficio. So ordered.
Araullo, C. J., Street, Malcolm, Avanceña, Ostrand,
Johns, and Romualdez, JJ., concur.
Batas.org 
803 Phil. 163  and officers of respondent Tullet Prebon (Philippines),
FIRST DIVISION
G.R. No. 189158, January 11, 2017
JAMES IENT AND MAHARLIKA SCHULZE,
PETITIONERS, VS. TULLETT PREBON
(PHILIPPINES), INC., RESPONDENT.
[G.R. No. 189530]
JAMES IENT AND MAHARLIKA SCHULZE,
PETITIONERS, VS. TULLETT PREBON
(PHILIPPINES), INC., RESPONDENT.
DECISION
LEONARDO-DE CASTRO, J.:
In these consolidated Petitions for Review under Rule
45 of the Rules of Court, petitioners James A. Ient
(Ient) and Maharlika C. Schulze (Schulze) assail the
Court of Appeals Decision[1] dated August 12, 2009 in
CA-G.R. SP No. 109094, which affirmed the
Resolutions dated April 23, 2009[2] and May 15,
2009[3] of the Secretary of Justice in I.S. No. 08-J-
8651. The Secretary of Justice, through the
Resolutions dated April 23, 2009 and May 15, 2009,
essentially ruled that there was probable cause to hold
petitioners, in conspiracy with certain former directors
Inc. (Tullett), criminally liable for violation of Sections
31 and 34 in relation to Section 144 of the Corporation
Code.
From an assiduous review of the records, we find that
the relevant factual and procedural antecedents for
these petitions can be summarized as follows:
Petitioner Ient is a British national and the Chief
Financial Officer of Tradition Asia Pacific Pte. Ltd.
(Tradition Asia) in Singapore.[4] Petitioner Schulze is a
Filipino/German who does Application Support for
Tradition Financial Services Ltd. in London (Tradition
London).[5] Tradition Asia and Tradition London are
subsidiaries of Compagnie Financiere Tradition and are
part of the "Tradition Group." The Tradition Group is
allegedly the third largest group of Inter-dealer
Brokers (IDB) in the world while the corporate
organization, of which respondent Tullett is a part, is
supposedly the second largest. In other words, the
Tradition Group and Tullett are competitors in the
inter-dealer broking business. IDBs purportedly "utilize
the secondary fixed income and foreign exchange
markets to execute their banks and their bank
customers' orders, trade for a profit and manage their
exposure to risk, including credit, interest rate and
exchange rate risks." In the Philippines, the clientele
for IDBs is mainly comprised of banks and financial
institutions.[6]
Tullett was the first to establish a business presence in
the Philippines and had been engaged in the inter-
dealer broking business or voice brokerage here since
1995.[7] Meanwhile, on the part of the Tradition Group,
the needs of its Philippine clients were previously
being serviced by Tradition Asia in Singapore. The
other IDBs in the Philippines are Amstel and Icap.[8]
Sometime in August 2008, in line with Tradition
Group's motive of expansion and diversification in
Asia, petitioners Ient and Schulze were tasked with
the establishment of a Philippine subsidiary of
Tradition Asia to be known as Tradition Financial
Services Philippines, Inc. (Tradition Philippines).
[9]
 Tradition Philippines was registered with the
Securities and Exchange Commission (SEC) on
September 19, 2008[10] with petitioners Ient and
Schulze, among others, named as incorporators and
directors in its Articles of Incorporation.[11]
On October 15, 2008, Tullett, through one of its
directors, Gordon Buchan, filed a Complaint-
Affidavit[12] with the City Prosecution Office of Makati
City against the officers/employees of the Tradition
Group for violation of the Corporation Code.
Impleaded as respondents in the Complaint-Affidavit
were petitioners Ient and Schulze, Jaime Villalon
(Villalon), who was formerly President and Managing
Director of Tullett, Mercedes Chuidian (Chuidian), who
was formerly a member of Tullett's Board of Directors,
and other John and Jane Does. Villalon and Chuidian
were charged with using their former positions in
Tullett to sabotage said company by orchestrating the
mass resignation of its entire brokering staff in order
for them to join Tradition Philippines. With respect to
Villalon, Tullett claimed that the former held several
meetings between August 22 to 25, 2008 with
members of Tullett's Spot Desk and brokering staff in
order to convince them to leave the company. Villalon
likewise supposedly intentionally failed to renew the
contracts of some of the brokers. On August 25, 2008,
a meeting was also allegedly held in Howzat Bar in
Makati City where petitioners and a lawyer of Tradition
Philippines were present. At said meeting, the brokers
of complainant Tullett were purportedly induced, en
masse, to sign employment contracts with Tradition
Philippines and were allegedly instructed by Tradition
Philippines' lawyer as to how they should file their
resignation letters.
Complainant also claimed that Villalon asked the
brokers present at the meeting to call up Tullett's
clients to inform them that they had already resigned
from the company and were moving to Tradition
Philippines. On August 26, 2008, Villalon allegedly
informed Mr. Barry Dennahy, Chief Operating Officer
of Tullett Prebon in the Asia-Pacific, through electronic
mail that all of Tullett's brokers had resigned.
Subsequently, on September 1, 2008, in another
meeting with Ient and Tradition Philippines' counsel,
indemnity contracts in favor of the resigning
employees were purportedly distributed by Tradition
Philippines. According to Tullett, respondents Villalon
and Chuidian (who were still its directors or officers at
the times material to the Complaint-Affidavit) violated
Sections 31 and 34 of the Corporation Code which
made them criminally liable under Section 144. As for
petitioners Ient and Schulze, Tullett asserted that they
conspired with Villalon and Chuidian in the latter's acts
of disloyalty against the company.[13]
Villalon and Chuidian filed their respective Counter-
Affivadits.[14]
Villalon alleged that frustration with management
changes in Tullett Prebon motivated his personal
decision to move from Tullett and accept the invitation
of a Leonard Harvey (also formerly an executive of
Tullett) to enlist with the Tradition Group. As a
courtesy to the brokers and staff, he informed them of
his move contemporaneously with the tender of his
resignation letter and claimed that his meetings with
the brokers was not done in bad faith as it was but
natural, in light of their long working relationship, that
he share with them his plans. The affidavit of
Engelbert Wee should allegedly be viewed with great
caution since Wee was one of those who accepted
employment with Tradition Philippines but changed his
mind and was subsequently appointed Managing
Director (Villalon's former position) as a prize for his
return. Villalon further argued that his resignation
from Tullett was done in the exercise of his
fundamental rights to the pursuit of life and the
exercise of his profession; he can freely choose to
avail of a better life by seeking greener pastures; and
his actions did not fall under any of the prohibited acts
under Sections 31 and 34 of the Corporation Code. It
is likewise his contention that Section 144 of the
Corporation Code applies only to violations of the
Corporation Code which do not provide for a penalty
while Sections 31 and 34 already provide for the
applicable penalties for violations of said provisions -
damages, accounting and restitution. Citing the
Department of Justice (DOJ) Resolution dated July 30,
2008 in UCPB v. Antiporda, Villalon claimed that the
DOJ had previously proclaimed that Section 31 is not a
penal provision of law but only the basis of a cause of
action for civil liability. Thus, he concluded that there
was no probable cause that he violated the
Corporation Code nor was the charge of conspiracy
properly substantiated.[15]
Chuidian claimed that she left Tullett simply to seek
greener pastures. She also insisted the complaint did
not allege any act on her part that is illegal or shows
her participation in any conspiracy. She merely
exercised her right to exercise her chosen profession
and pursue a better life. Like Villalon, she stressed
that her resignation from Tullett and subsequent
transfer to Tradition Philippines did not fall under any
of the prohibited acts under Sections 31 and 34.
Section 144 of the Corporation Code purportedly only
applies to provisions of said Code that do not provide
for any penalty while Sections 31 and 34 already
provide for the penalties for their violation - damages,
accounting and restitution. In her view, that Section
34 provided for the ratification of the acts of the erring
corporate director, trustee or office evinced legislative
intent to exclude violation of Section 34 from criminal
prosecution. She argued that Section 144 as a penal
provision should be strictly construed against the State
and liberally in favor of the accused and Tullett has
failed to substantiate its charge of bad faith on her
part.[16]
In her Counter-Affidavit,[17] petitioner Schulze denied
the charges leveled against her. She pointed out that
the Corporation Code is not a "special law" within the
contemplation of Article 10[18]of the Revised Penal
Code on the supplementary application of the Revised
Penal Code to special laws since said provision
purportedly applies only to "special penal laws." She
further argued that "[s]ince the Corporation Code does
not expressly provide that the provisions of the
Revised Penal Code shall be made to apply
suppletorily, nor does it adopt the nomenclature of
penalties of the Revised Penal Code, the provisions of
the latter cannot be made to apply suppletorily to the
former as provided for in the first sentence of Article
10 of the Revised Penal Code."[19] Thus, she concluded
that a charge of conspiracy which has for its basis
Article 8 of the Revised Penal Code cannot be made
applicable to the provisions of the Corporation Code.
Schulze also claimed that the resignations of Tullett's
employees were done out of their own free will without
force, intimidation or pressure on her and Ient's part
and were well within said employees' right to "free
choice of employment."[20]
For his part, petitioner Ient alleged in his Counter-
Affidavit that the charges against him were merely
filed to harass Tradition Philippines and prevent it from
penetrating the Philippine market. He further asserted
that due to the highly specialized nature of the
industry, there has always been a regular flow of
brokers between the major players. He claimed that
Tradition came to the Philippines in good faith and
with a sincere desire to foster healthy competition with
the other brokers. He averred that he never forced
anyone to join Tradition Philippines and the Tullett
employees' signing on with Tradition Philippines was
their voluntary act since they were discontented with
the working environment in Tullett. Adopting a similar
line of reasoning as Schulze, Ient believed that the
Revised Penal Code could not be made suppletorily
applicable to the Corporation Code so as to charge him
as a conspirator. According to Ient, he merely acted
within his rights when he offered job opportunities to
any interested person as it was within the employees'
rights to change their employment, especially since
Article 23 of the Universal Declaration of Human
Rights (of which the Philippines is a signatory)
provides that "everyone has the right to work, to free
choice of employment, to just and favorable conditions
of work and to protection against
unemployment."[21] He also denounced the Complaint-
Affidavit and the affidavits of Tullett employees
attached thereto as self-serving or as an
exaggeration/twisting of the true events. [22]
In a Consolidated Reply-Affidavit[23] notarized on
January 22, 2009, Tullett argued that Villalon,
Chuidian, Schulze, and Ient have mostly admitted the
acts attributed to them in the Complaint-Affidavit and
only attempted to characterize said acts as "normal,"
"innocent" or "customary." It was allegedly evident
from the Counter-Affidavits that the resignation of
Tullett's employees was an orchestrated plan and not
simply motivated by their seeking "greener pastures."
Purported employee movements in the industry
between the major companies are irrevelant since
such movements are subject to contractual
obligations. Tullett likewise denied that its working
environment was stringent and "weird." Even
assuming that Villalon and Chuidian were dissatisfied
with their employment in Tullett, this would
supposedly not justify nor exempt them from violating
their duties as Tullett's officers/directors. There was
purportedly no violation of their constitutional rights to
liberty or to exercise their profession as such rights
are not unbridled and subject to the laws of the State.
In the case of Villalon and Chuidian, they had to
comply with their duties found in Sections 31 and 34
of the Corporation Code. Tullett asserts that Section
144 applies to the case at bar since the DOJ
Resolution in UCPB is not binding as it applies only to
the parties therein and it likewise involved facts
different from the present case. Relying on Home
Insurance Company v. Eastern Shipping Lines,
[24]
 Tullett argued that Section 144 applies to all other
violations of the Corporation Code without exception.
Article 8 of the Revised Penal Code on conspiracy was
allegedly applicable to the Corporation Code as a
special law with a penal provision.[25]
In a Supplemental Complaint-Affidavit[26] likewise
notarized on January 22, 2009, Tullett included
Leonard James Harvey (Harvey) in the case and
alleged that it learned of Harvey's complicity through
the Counter Affidavit of Villalon. Tullett claimed that
Harvey, who was Chairman of its Board of Directors at
the time material to the Complaint, also conspired to
instigate the resignations of its employees and was an
indispensable part of the sabotage committed against
it.
In his Rejoiner-Affidavit,[27] Ient vehemently denied
that there was a pre-arranged plan to sabotage
Tullett. According to Ient, Gordon Buchan of Tullett
thought too highly of his employer to believe that the
Tradition Group's purpose in setting up Tradition
Philippines was specifically to sabotage Tullett. He
stressed that Tradition Philippines was set up for
legitimate business purposes and Tullett employees
who signed with Tradition did so out of their own free
will and without any force, intimidation, pressure or
inducement on his and Schulze's part. All he allegedly
did was confirm the rumors that the Tradition Group
was planning to set up a Philippine office. Echoing the
arguments of Villalon and Chuidian, Ient claimed that
(a) there could be no violation of Sections 31 and 34
of the Corporation as these sections refer to corporate
acts or corporate opportunity; (b) Section 144 of the
same Code cannot be applied to Sections 31 and 34
which already contains the penalties or remedies for
their violation; and (c) conspiracy under the Revised
Penal Code cannot be applied to the Sections 31 and members of the broking staff who stand as [Tullett]'s
34 of the Corporation Code. witnesses, also initially resigned from [Tullett] and
transferred to Tradition but backed out from their
In a Resolution[28] dated February 17, 2009, State contract of employment with Tradition and opted to
Prosecutor Cresencio F. Delos Trinos, Jr. (Prosecutor remain with [Tullett].
Delos Trinos), Acting City Prosecutor of Makati City,
dismissed the criminal complaints. He reasoned that: Even assuming ex gratia argumenti that the brokers
were induced by the respondents or anyone of them to
It is our considered view that the acts ascribed [to]
leave their employment with [Tullett], such
respondents Villalon and Chuidian did not constitute
inducement may only give rise to civil liability for
any of the prohibited acts of directors or trustees
damages against the respondents but no criminal
enunciated under Section 31. Their cited actuations
liability would attach on them. x x x.
certainly did not involve voting for or assenting to
patently unlawful acts of [Tullett] nor could the same
On the alleged inducements of clients of [Tullett] to
be construed as gross negligence or bad faith in
transfer to Tradition, there is no showing that clients
directing the affairs of [Tullett]. There is also no
of [Tullett] actually transferred to Tradition. Also, the
showing that they acquired any personal or pecuniary
allegation that respondents orchestrated the mass
interest in conflict with their duty as directors of
resignation of employees of [Tullett] to destroy or shut
[Tullett]. Neither was there a showing that they
down its business and to eliminate it from the market
attempted to acquire or acquired, in violation of their
in order that Tradition could take its place is baseless
duty as directors, any interest adverse to [Tullett] in
and speculative. Significantly, it is noted that despite
respect [to] any matter which has been reposed in
the resignations of respondents Villalon and Chuidian
them in confidence.
and the majority of the broking staff and their
subsequent transfer to Tradition, the business of
xxxx
[Tullet] was not destroyed or shut down. [Tullett] was
neither eliminated from the market nor its place in the
The issue that respondent Villalon informed the
market taken by Tradition. x x x
brokers of his plan to resign from [Tullett] and to
subsequently transfer to Tradition is not in dispute.
In the same vein, the "corporate opportunity doctrine"
However, we are unable to agree that the brokers
enunciated under Section 34 does not apply herein
were induced or coerced into resigning from [Tullett]
and cannot be rightfully raised against respondents
and transferring to Tradition themselves. x x x As the
Villalon and Chuidian. Under Section 34, a director of a
record shows, Mr. Englebert Wee and the six (6)
corporation is prohibited from competing with the
business in which his corporation is engaged in as
otherwise he would be guilty of disloyalty where
profits that he may realize will have to go to the
corporate funds except if the disloyal act is ratified.
Suffice it to say that their cited acts did not involve
any competition with the business of [Tullett].[29]
On the issue of conspiracy, Prosecutor Delos Trinos
found that since Villalon and Chuidian did not commit
any acts in violation of Sections 31 and 34 of the
Corporation Code, the charge of conspiracy against
Schulze and Ient had no basis. As for Harvey, said
Resolution noted that he was similarly situated as
Villalon and Chuidian; thus, the considerations in the
latter's favor were applicable to the former.[30] Lastly,
on the applicability of Section 144 to Sections 31 and
34, Prosecutor Delos Trinos relied on the reasoning in
the DOJ Resolution dated July 30, 2008 in UCPB v.
Antiporda issued by then Secretary of Justice Raul M.
Gonzalez, to wit:
We maintain and reiterate the ratiocination of the
Secretary of Justice in United Coconut Planters Bank
vs. Tirso Antiporda, et al., I.S. No. 2007-633
promulgated on July 30, 2008, thus - "It must be
noted that Section 144 covers only those provisions
'not otherwise specifically penalized therein.' In plain
language, this means that the penalties under Section
144 apply only when the other provisions of the
Corporation Code do not yet provide penalties for non-
compliance therewith."
A reading of Sections 31 and 34 shows that penalties
for violations thereof are already provided therein.
Under Section 31, directors or trustees are made liable
for damages that may result from their fraudulent or
illegal acts. Also, directors, trustees or officers who
attempt to acquire or acquire any interest adverse to
the corporation will have to account for the profits
which otherwise would have accrued to the
corporation. Section 34, on the other hand, penalizes
directors who would be guilty of disloyalty to the
corporation by accounting to the corporation all profits
that they may realize by refunding the same.[31]
Consequently, Tullett filed a petition for review with
the Secretary of Justice to assail the foregoing
resolution of the Acting City Prosecutor of Makati City.
In a Resolution[32] dated April 23, 2009, then Secretary
of Justice Raul M. Gonzalez reversed and set aside
Prosecutor Delos Trinos's resolution and directed the
latter to file the information for violation of Sections
31 and 34 in relation to Section 144 of the Corporation
Code against Villalon, Chuidian, Harvey, Schulze, and
Ient before the proper court. As can be gleaned from
the April 23, 2009 Resolution, the Secretary of Justice
ruled that:
It is evident from the case at bar that there is
probable cause to indict respondents Villalon, Chuidian
and Harvey for violating Section 31 of the Corporation
Code. Indeed, there is prima facie evidence to show
that the said respondents acted in bad faith in
directing the affairs of complainant. Undeniably,
respondents Villalon, Chuidian and Harvey occupied
positions of high responsibility and great trust as they
were members of the board of directors and corporate
officers of complainant. x x x As such, they are
required to administer the corporate affairs of
complainant for the welfare and benefit of the
stockholders and to exercise the best care, skill and
judgment in the management of the corporate
business and act solely for the interest of the
corporation.
xxxx
Respondents Villalon and Chuidian acted with
dishonesty and in fraud. They went to the extent of
having their several meetings away from
complainant's office so as to secretly entice and induce
all its brokers to transfer to Tradition. Respondents
Villalon and Chuidian did not entice merely one or two
employees of complainant but admittedly, the entire
broking staff of the latter. This act would lead to the
sure collapse of complainant. x x x.
Further, respondents Villalon and Chuidian acquired
personal and pecuniary interest in conflict with their
duties as directors of complainant. Respondents
Villalon and Chuidian committed the acts complained
of in order to transfer to Tradition, to have a higher
salary and position and bring the clients and business
of complainant with them. The fact that Tradition is
not yet incorporated at that time is of no consequence.
Moreover, respondents Villalon and Chuidian violated
Section 34 of the Corporation Code when they
acquired business opportunity adverse to that of
complainant. When respondents Villalon and Chuidian
told the brokers of complainant to convince their
clients to transfer their business to Tradition, the
profits of complainant which rightly belonging to it will
be transferred to a competitor company to be headed
by respondents.
The provision of Section 144 of the Corporation Code
is also applicable in the case at bar as the penal
provision provided therein is made applicable to all
violations of the Corporation Code, not otherwise
specifically penalized. Moreover, the factual milieu of
the case entitled "Antiporda, et al., IS No. 2007-633"
is inapplicable as the facts of the above-entitled case
is different.
xxxx
As for respondent Harvey's probable indictment, aside
from not submitting his counter-affidavit, the counter-
affidavit of respondent Villalon showed that he is also
liable as such since the idea to transfer the
employment of complainant's brokers was broached
by him.
Anent respondents Ient and Schulze, record revealed
that they conspired with respondents Villalon and
Chuidian when they actively participated in the acts
complained of. They presented the employment
contracts and indemnity agreements with the brokers
of complainant in a series of meetings held with
respondents Villalon and Chuidian. Respondent Ient
signed the contracts as CFO of Tradition Asia and even
confirmed the transfer of respondent Villalon to
Tradition. Respondent Schulze admitted that the
purpose of her sojourn in the Philippines was to assist
in the formation of Tradition. Thus, it is clear that their
role in the acts complained of were instrumental for
respondents Villalon and Chuidian to violate their
duties and responsibilities as directors and officers of
complainant.[33]
Ient and Schulze moved for reconsideration of the
foregoing Resolution by the Secretary of Justice.
Meanwhile, on May 14, 2009, two Informations, one
for violation of Section 31 and another for violation of
Section 34, were filed by Prosecutor Delos Trinos with
the Metropolitan Trial Court of Makati City. In a
Resolution dated May 15, 2009, the Secretary of
Justice denied the motion for reconsideration filed by
petitioners. Unsatisfied with this tum of events,
petitioners Ient and Schulze brought the matter to the
Court of Appeals via a petition for certiorari under Rule
65 which was docketed as CA-G.R. SP No. 109094.
In a Decision dated August 12, 2009, the Court of
Appeals affirmed the Secretary of Justice's Resolutions
dated April 23, 2009 and May 15, 2009, after holding
that:
Respondent Secretary correctly stressed that Sections
31 and 34 must be read in the light of the nature of
the position of a director and officer of the corporation
as highly imbued with trust and confidence.
Petitioners' rigid interpretation of clear-cut instances of
liability serves only to undermine the values of loyalty,
honesty and fairness in managing the affairs of the
corporation, which the law vested on their position.
Besides, this Court can hardly deduce abuse of
discretion on the part of respondent Secretary in
considering a conflict of interest scenario from
petitioners' act of advancing the interest of an
emerging competitor in the field rather than fiercely
protecting the business of their own company. As aptly
pointed out by the private respondent, the issue is not
the right of the employee brokers to seek greener
pastures or better employment opportunities but
the breach of fiduciary duty owed by its directors and
officers.
In the commentary on the subject of duties of
directors and controlling stockholders under
the Corporation Code, Campos explained:
"Fiduciary Duties; Conflict of Interest
"A director, holding as he does a position of trust, is a
fiduciary of the corporation. As such, in case of conflict
of his interest with those of the corporation, he cannot
sacrifice the latter without incurring liability for his
disloyal act. The fiduciary duty has many
ramifications, and the possible conflict-of-
interest situations are almost limitless, each
possibility posing different problems. There will be
cases where a breach of trust is clear. Thus, where a
director converts for his own use funds or property
belonging to the corporation, or accepts material filing of the corresponding information against the
benefits for exercising his powers in favor of someone accused, including herein petitioners.
seeking to do business with the corporation, no court
will allow him to keep the profit he derives from his As to petitioners' contention that conspiracy had not
wrongdoing. In many other cases, however, the line of been established by the evidence, suffice it to state
demarcation between the fiduciary relationship and a that such stance is belied by their own admission of
director's personal right is not easy to define. The the very acts complained of in the Complaint-Affidavit,
Code has attempted at least to lay down general the defense put up by them consists merely in their
rules of conduct and although these serve as common argument that no crime was committed
guidelines for directors to follow, the because private respondent's brokers had the right to
determination as to whether in a given case the resign and transfer employment if they so decide.
duty of loyalty has been violated has ultimately
to be decided by the court on the case's own It bears to reiterate that probable cause is such set of
merits." x x x. facts and circumstances which would lead a
reasonably discreet and prudent man to believe that
Prescinding from the above, We agree with the
the offense charged in the Information or any offense
Secretary of Justice that the acts complained of in this
included therein has been committed by the person
case establish a prima facie case for violation of Sec.
sought to be arrested. In determining probable cause,
31 such that the accused directors and officers of
the average man weighs the facts and circumstances
private respondent corporation are probably guilty of
without resorting to the calibrations of the rules of
breach of bad faith in directing the affairs of the
evidence of which he has no technical knowledge. He
corporation. The breach of fiduciary duty as such
relies on common sense. Thus, a finding of probable
director and corporate office (sic) are evident from
cause does not require an inquiry into whether there is
their participation in recruiting the brokers employed
sufficient evidence to procure a conviction. It is
in the corporation, inducing them to accept
enough that it is believed that the act or omission
employment contracts with the newly formed firm
complained of constitutes the offense charged.
engaged in competing business, and securing these
Precisely, there is a trial for the reception of evidence
new hires against possible breach of contract
of the prosecution in support of the charge.
complaint by the corporation through indemnity
contracts provided by Tradition Philippines. Clearly, no
Finally, the Court finds no merit in the argument of
grave abuse of discretion was committed by the
petitioners that Sec. 144 is not applicable since Sec.
respondent Secretary in reversing the city prosecutor's
dismissal of the criminal complaint and ordering the
31 already provides for liability for damages against
the guilty director or corporate officer.
"SEC. 144. Violations of the Code. - Violations of
any of the provisions of this Code or its
amendments not otherwise specifically penalized
therein shall be punished by a fine of not less than
one thousand (P1,000.00) pesos but not more than
ten thousand (P10,000.00) pesos or by imprisonment
for not less than thirty (30) days but not more than
five (5) years, or both, in the discretion of the court. If
the violation is committed by a corporation, the same
may, after notice and hearing, be dissolved in
appropriate proceedings before the Securities and
Exchange Commission; Provided, That such dissolution
shall not preclude the institution of appropriate action
against the director, trustee or officer of the
corporation responsible for the said
violation; Provided, further, That nothing in this
section shall be construed to repeal the other causes
for dissolution of a corporation provided in this Code."
x x x.
"Damages" as the term is used in Sec. 31 cannot be
deemed as punishment or penalty as this appears in
the above-cited criminal provision of the Corporation
Code. Such "damage" implies civil, rather than,
criminal liability and hence does not fall under those
provisions of the Code which are not "specifically
penalized" with fine or imprisonment.[34]
In light of the adverse ruling of the Court of Appeals,
petitioners Ient and Schulze filed separate petitions for
review with this Court. After requiring further
pleadings from the parties, the Court directed the
parties to submit their memoranda to consolidate their
positions on the issues.
At the outset, it should be noted that respondent
Tullett interposed several procedural objections which
we shall dispose of first.
Anent respondent's contentions that the present
petitions (assailing the issuances of the Secretary of
Justice on the question of probable cause) had become
moot and academic with the filing of the Informations
in the trial court and that under our ruling in Advincula
v. Court of Appeals[35] the filing of a petition
for certiorari with the appellate court was the improper
remedy as findings of the Secretary of Justice on
probable cause must be respected, we hold that these
cited rules are not inflexible.
In Yambot v. Tuquero,[36] we observed that under
exceptional circumstances, a petition
for certiorari assailing the resolution of the Secretary
of Justice (involving an appeal of the prosecutor's
ruling on probable cause) may be allowed,
notwithstanding the filing of an information with the
trial court. We reiterated the doctrine in Ching v.
Secretary of Justice[37] that the acts of a quasi-judicial
officer may be assailed by the aggrieved party through
a petition for certiorari and enjoined (a) when
necessary to afford adequate protection to the
constitutional rights of the accused; (b) when
necessary for the orderly administration of justice; (c)
when the acts of the officer are without or in excess of
authority; (d) where the charges are manifestly false
and motivated by the lust for vengeance; and (e)
when there is clearly no prima facie case against the
accused.
In the case at bar, it is unsettling to perceive a
seeming lack of uniformity in the rulings of the
Secretary of Justice on the issue of whether a violation
of Section 31 entails criminal or only civil liability and
such divergent actions are explained with a terse
declaration of an alleged difference in factual milieu
and nothing further. Such a state of affairs is not only
offensive to principles of fair play but also anathema
to the orderly administration of justice. Indeed, we
have held that where the action of the Secretary of
Justice is tainted with arbitrariness, an aggrieved party
may seek judicial review via certiorari on the ground
of grave abuse of discretion.[38]
We likewise cannot give credit to respondent's claim of
mootness. The "moot and academic" principle is not a
magical formula that can automatically dissuade the
courts in resolving a case.[39]The Court will not hesitate
to resolve the legal and constitutional issues raised to
formulate controlling principles to guide the bench, the
bar, and the public, particularly on a question capable
of repetition, yet evading review.[40]
As for the assertion that the present petitions are
dismissible due to forum shopping since they were
filed during the pendency of petitioners' motion to
quash and their co-accused's motion for judicial
determination of probable cause with the trial court,
we hold that there is no cause to dismiss these
petitions on such ground.
Forum shopping is an act of a party, against whom an
adverse judgment or order has been rendered in one
forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or
special civil action for certiorari. It may also
involve the institution of two or more actions or
proceedings grounded on the same cause on the
supposition that one or the other court would make a
favorable disposition.[41] There is no forum shopping
where the suits involve different causes of action or
different reliefs.[42]
Jurisprudence explains that:
A motion to quash is the mode by which an accused
assails, before entering his plea, the validity of the
criminal complaint or the criminal information filed
against him for insufficiency on its face in point of law,
or for defect apparent on the face of the Information.
The motion, as a rule, hypothetically admits the truth
of the facts spelled out in the complaint or
information. The rules governing a motion to quash
are found under Rule 117 of the Revised Rules of
Court. Section 3 of this Rule enumerates the grounds
for the quashal of a complaint or information. x x x.
[43]
 (Citation omitted.)
On the other hand, the action at bar is a review
on certiorari of the assailed Court of Appeals decision
wherein the main issue is whether or not the Secretary
of Justice committed grave abuse of discretion in
reversing the City Prosecutor's dismissal of the
criminal complaint. These consolidated petitions may
proceed regardless of whether or not there are
grounds to quash the criminal information pending in
the court a quo.
Neither do we find relevant the pendency of
petitioners' co-accused's motion for judicial
determination of probable cause before the trial court.
The several accused in these consolidated cases had a
number of remedies available to them and they are
each free to pursue the remedy which they deem is
their best option. Certainly, there is no requirement
that the different parties in a case must all choose the
same remedy. We have held that even assuming
separate actions have been filed by different parties
involving essentially the same subject matter, no
forum shopping is committed where the parties did not
resort to multiple judicial remedies.[44] In any event,
we have stated in the past that the rules on forum
shopping are not always applied with inflexibility.[45]
As a final point on the technical aspects of this case,
we reiterate here the principle that in the exercise of
the Courts equity jurisdiction, procedural lapses may
be disregarded so that a case may be resolved on its
merits.[46] Indeed where strong considerations of
substantive justice are manifest in a petition, the strict
application of the rules of procedure may be relaxed.
[47]
 This is particularly true in these consolidated cases
where legal issues of first impression have been
raised.
We now proceed to rule upon the parties' substantive
arguments.
The main bone of disagreement among the parties in
this case is the applicability of Section 144 of the
Corporation Code to Sections 31 and 34 of the same
statute such that criminal liability attaches to
violations of Sections 31 and 34. For convenient
reference, we quote the contentious provisions here:
SECTION 31. Liability of Directors, Trustees or
Officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts
of the corporation or who are guilty of gross
negligence or bad faith in directing the affairs of the
corporation or acquire any personal or pecuniary
interest in conflict with their duty as such directors or
trustees shall be liable jointly and severally for all
damages resulting therefrom suffered by the
corporation, its stockholders or members and other
persons.
When a director, trustee or officer attempts to acquire
or acquires, in violation of his duty, any interest
adverse to the corporation in respect of any matter
which has been reposed in him in confidence, as to
which equity imposes a disability upon him to deal in
his own behalf, he shall be liable as a trustee for the
corporation and must account for the profits which other causes for dissolution of a corporation provided
otherwise would have accrued to the corporation. in this Code.

Petitioners posit that Section 144 only applies to the

SECTION 34. Disloyalty of a Director. - Where a
provisions of the Corporation Code or its amendments
director, by virtue of his office, acquires for himself a
"not otherwise specifically penalized" by said statute
business opportunity which should belong to the
and should not cover Sections 31 and 34 which both
corporation, thereby obtaining profits to the prejudice
prescribe the "penalties" for their violation; namely,
of such corporation, he must account to the latter for
damages, accounting and restitution of profits. On the
all such profits by refunding the same, unless his act
other hand, respondent and the appellate court have
has been ratified by a vote of the stockholders owning
taken the position that the term "penalized" under
or representing at least two-thirds (2/3) of the
Section 144 should be interpreted as referring to
outstanding capital stock. This provision shall be
criminal penalty, such as fine or imprisonment, and
applicable, notwithstanding the fact that the director
that it could not possibly contemplate "civil" penalties
risked his own funds in the venture.
such as damages, accounting or restitution.
SECTION 144. Violations of the Code. - Violations of
As Section 144 speaks, among others, of the
any of the provisions of this Code or its amendments
imposition of criminal penalties, the Court is guided by
not otherwise specifically penalized therein shall be
the elementary rules of statutory construction of penal
punished by a fine of not less than one thousand
provisions. First, in all criminal prosecutions, the
(P1,000.00) pesos but not more than ten thousand
existence of criminal liability for which the accused is
(P10,000.00) pesos or by imprisonment for not less
made answerable must be clear and certain. We have
than thirty (30) days but not more than five (5) years,
consistently held that "penal statutes are construed
or both, in the discretion of the court. If the violation
strictly against the State and liberally in favor of the
is committed by a corporation, the same may, after
accused. When there is doubt on the interpretation of
notice and hearing, be dissolved in appropriate
criminal laws, all must be resolved in favor of the
proceedings before the Securities and Exchange
accused. Since penal laws should not be applied
Commission: Provided, That such dissolution shall not
mechanically, the Court must determine whether their
preclude the institution of appropriate action against
application is consistent with the purpose and reason
the director, trustee or officer of the corporation
of the law."[48]
responsible for said violation: Provided, further, That
nothing in this section shall be construed to repeal the
Intimately related to the in dubio pro reo[49] principle is
the rule of lenity. The rule applies when the court is
faced with two possible interpretations of a penal
statute, one that is prejudicial to the accused and
another that is favorable to him. The rule calls for the
adoption of an interpretation which is more lenient to
the accused.[50]
In American jurisprudence, there are two schools of
thought regarding the application of the rule of lenity.
Justice David Souter, writing for the majority in United
States v. R.L.C.,[51] refused to resort to the rule and
held that lenity is reserved "for those situations in
which a reasonable doubt persists about a statute's
intended scope even after resort to 'the language and
structure, legislative history, and motivating policies'
of the statute." Justice Antonin Scalia, although
concurring in part and concurring in the judgment,
argued that "it is not consistent with the rule of lenity
to construe a textually ambiguous penal statute
against a criminal defendant on the basis of legislative
history... The rule of lenity, in my view, prescribes the
result when a criminal statute is ambiguous: The more
lenient interpretation must prevail."[52] In other words,
for Justice Scalia, textual ambiguity in a penal statute
suffices for the rule of lenity to be applied. Although
foreign case law is merely persuasive authority and
this Court is not bound by either legal perspective
expounded in United States v. R.L.C., said case
provides a useful framework in our own examination
of the scope and application of Section 144.
After a meticulous consideration of the arguments
presented by both sides, the Court comes to the
conclusion that there is textual ambiguity in Section
144; moreover, such ambiguity remains even after an
examination of its legislative history and the use of
other aids to statutory construction, necessitating the
application of the rule of lenity in the case at bar.
Respondent urges this Court to strictly construe
Section 144 as contemplating only penal penalties.
However, a perusal of Section 144 shows that it is not
a purely penal provision. When it is a corporation that
commits a violation of the Corporation Code, it may be
dissolved in appropriate proceedings before the
Securities and Exchange Commission. The involuntary
dissolution of an erring corporation is not imposed as a
criminal sanction,[53] but rather it is an administrative
penalty.
The ambivalence in the language of Section 144
becomes more readily apparent in comparison to the
penal provision[54] in Republic Act No. 8189 (The
Voter's Registration Act of 1996), which was the
subject of our decision in Romualdez v. Commission
on Elections.[55] In that case, we upheld the
constitutionality of Section 45(j) of Republic Act No.
8189 which made any violation of said statute a
criminal offense. It is respondent's opinion that the
penal clause in Section 144 should receive similar
treatment and be deemed applicable to any violation
of the Corporation Code. The Court cannot accept this
proposition for there are weighty reasons to
distinguish this case from Romualdez.
We find it apropos to quote Sections 45 and 46 of and transmission of registration data or information;
Republic Act No. 8189 here:
f) to gain, cause access to, use, alter, destroy, or
SECTION 45. Election Offense. - The following shall
disclose any computer data, program, system
be considered election offenses under this Act:
software, network, or any computer related devices,
facilities, hardware or equipment, whether classified or
a) to deliver, hand over, entrust or give, directly or
declassified;
indirectly, his voter's identification card to another in
consideration of money or other benefit or promise; or
g) failure to provide certified voters and deactivated
take or accept such voter's identification card, directly
voters list to candidates and heads or representatives
or indirectly, by giving or causing the giving of money
of political parties upon written request as provided in
or other benefit or making or causing the making of a
Section 30 hereof;
promise therefor;
h) failure to include the approved application form for
b) to fail, without cause, to post or give any of the
registration of a qualified voter in the book of voters of
notices or to make any of the reports required under
a particular precinct or the omission of the name of a
this Act;
duly registered voter in the certified list of voters of
the precinct where he is duly registered resulting in his
c) to issue or cause the issuance of a voter's
failure to cast his vote during an election, plebiscite,
identification number to cancel or cause the
referendum, initiative and/or recall. The presence of
cancellation thereof in violation of the provisions of
the form or name in the book of voters or certified list
this Act; or to refuse the issuance of registered voters
of voters in precincts other than where he is duly
their voter's identification card;
registered shall not be an excuse hereof;

d) to accept an appointment, to assume office and to

i) The posting of a list of voters outside or at the door
actually serve as a member of the Election
of a precinct on the day of an election, plebiscite,
Registration Board although ineligible thereto; to
referendum, initiative and/or recall and which list is
appoint such ineligible person knowing him to be
different in contents from the certified list of voters
ineligible;
being used by the Board of Election Inspectors; and

e) to interfere with, impede, abscond for purposes of

j) Violation of any of the provisions of this Act.
gain or to prevent the installation or use of computers
and devices and the processing, storage, generation
SECTION 46. Penalties. - Any person found guilty of
any Election offense under this A.ct shall be punished
with imprisonment of not less than one (1) year but
nor more than six (6) years and shall not be subject to
probation. In addition, the guilty party shall be
sentenced to suffer disqualification to hold public office
and deprivation of the right of suffrage. If he is a
foreigner, he shall be deported after the prison term
has been served. Any political party found guilty shall
be sentenced to pay a fine of not less than One
hundred thousand pesos (P100,000) but not more
than Five hundred thousand pesos (P500,000).
The crux of the Court's ruling in Romualdez is that,
from the wording of Section 450), there is a clear
legislative intent to treat as an election offense any
violation of the provisions of Republic Act No. 8189.
For this reason, we do not doubt that Section 46
contemplates the term "penalty" primarily in the
criminal law or punitive concept of the term.
There is no provision in the Corporation Code using
similarly emphatic language that evinces a categorical
legislative intent to treat as a criminal offense each
and every violation of that law. Consequently, there is
no compelling reason for the Court to construe Section
144 as similarly employing the term "penalized" or
"penalty" solely in terms of criminal liability.
In People v. Temporada,[56] we held that in interpreting
penal laws, "words are given their ordinary meaning
and that any reasonable doubt about the meaning is
decided in favor of anyone subjected to a criminal
statute." Black's Law Dictionary recognizes the
numerous conceptions of the term penalty and
discusses in part that it is "[a]n elastic term with
many different shades of meaning; it involves idea of
punishment, corporeal or pecuniary, or civil or
criminal, although its meaning is generally confined
to pecuniary punishment."[57] Persuasively, in Smith v.
Doe,[58] the U.S. Supreme Court, interpreting a
statutory provision that covers both punitive and non-
punitive provisions, held that:
The location and labels of a statutory provision do not
by themselves transform a civil remedy into a criminal
one. In 89 Firearms, the Court held a forfeiture
provision to be a civil sanction even though the
authorizing statute was in the criminal code. The Court
rejected the argument that the placement
demonstrated Congress' "intention to create an
additional criminal sanction," observing that "both
criminal and civil sanctions may be labeled
'penalties.'" (Emphasis supplied.)
Giving a broad and flexible interpretation to the term
"penalized" in Section 144 only has utility if there are
provisions in the Corporation Code that specify
consequences other than "penal" or "criminal" for
violation of, or non-compliance with, the tenets of the
Code. Petitioners point to the civil liability prescribed
in Sections 31 and 34. Aside from Sections 31 and 34,
we consider these provisions of interest:
SECTION 21. Corporation by Estoppel. - All persons
who assume to act as a corporation knowing it to
be without authority to do so shall be liable as
general partners for all debts, liabilities and
damages incurred or arising as a
result thereof: Provided, however, That when any
such ostensible corporation is sued on any transaction
entered by it as a corporation or on any tort
committed by it as such, it shall not be allowed to use
as a defense its lack of corporate personality.
One who assumes an obligation to an ostensible
corporation as such, cannot resist performance thereof
on the ground that there was in fact no corporation.
SECTION 22. Effects of non-use of corporate charter
and continuous in operation of a corporation. - If a
corporation does not formally organize and
commence the transaction of its business or the
construction of its works within two (2) years
from the date of its incorporation, its corporate
powers cease and the corporation shall be
deemed dissolved. However, if a corporation has
commenced the transaction of its business but
subsequently becomes continuously inoperative for a
period of at least five (5) years, the same shall be a
ground for the suspension or revocation of its
corporate franchise or certificate of incorporation.
This provision shall not apply if the failure to organize,
commence the transaction of its business or the
construction of its works, or to continuously operate is
due to causes beyond the control of the corporation as
may be determined by the Securities and Exchange
Commission.
SECTION 65. Liability of directors for watered stocks.
- Any director or officer of a corporation
consenting to the issuance of stocks for a
consideration less than its par or issued value or
for a consideration in any form other than cash,
valued in excess of its fair value, or who, having
knowledge thereof, does not forthwith express his
objection in writing and file the same with the
corporate secretary, shall be solidarily liable with
the stockholder concerned to the corporation
and its creditors for the difference between the
fair value received at the time of issuance of the
stock and the par or issued value of the same.
SECTION 66. Interest on unpaid subscriptions.
- Subscribers for stock shall pay to the
corporation interest on all unpaid
subscriptions from the date of subscription, if so
required by, and at the rate of interest fixed in, the
by-laws. If no rate of interest is fixed in the bylaws,
such rate shall be deemed to be the legal rate.
SECTION 67. Payment of balance of subscription. -
Subject to the provisions of the contract of
subscription, the board of directors of any stock
corporation may at any time declare due and payable
to the corporation unpaid subscriptions to the capital
stock and may collect the same or such percentage of
said unpaid subscriptions, in either case with interest
accrued, if any, as it may deem necessary.

Payment of any unpaid subscription or any percentage
thereof, together with the interest accrued, if any,
shall be made on the date specified in the contract of
subscription or on the date stated in the call made by
the board. Failure to pay on such date shall
render the entire balance due and payable and
shall make the stockholder liable for interest at
the legal rate on such balance, unless a different
rate of interest is provided in the by-laws,
computed from such date until full payment. If
within thirty (30) days from the said date no payment
is made, all stocks covered by said subscription shall
thereupon become delinquent and shall be
subject to sale as hereinafter provided, unless the
board of directors orders otherwise.
SECTION 74. Books to be kept; stock transfer agent. -
Every corporation shall, at its principal office, keep and
carefully preserve a record of all business
transactions, and minutes of all meetings of
stockholders or members, or of the board of directors
or trustees, in which shall be set forth in detail the
time and place of holding the meeting, how
authorized, the notice given, whether the meeting was
regular or special, if special its object, those present
and absent, and every act done or ordered done at the
meeting. Upon the demand of any director, trustee,
stockholder or member, the time when any director,
trustee, stockholder or member entered or left the
meeting must be noted in the minutes; and on a
similar demand, the yeas and nays must be taken on
any motion or proposition, and a record thereof
carefully made. The protest of any director, trustee,
stockholder or member on any action or proposed
action must be recorded in full on his demand.
The records of all business transactions of the
corporation and the minutes of any meeting shall be
open to the inspection of any director, trustee,
stockholder or member of the corporation at
reasonable hours on business days and he may
demand, in writing, for a copy of excerpts from said
records or minutes, at his expense.
Any officer or agent of the corporation who shall
refuse to allow any director, trustee, stockholder
or member of the corporation to examine and
copy excerpts from its records or minutes, in
accordance with the provisions of this Code,
shall be liable to such director, trustee,
stockholder or member for damages, and in
addition, shall be guilty of an offense which shall
be punishable under Section 144 of this
Code: Provided, That if such refusal is pursuant to a
resolution or order of the board of directors or
trustees, the liability under this section for such action
shall be imposed upon the directors or trustees who
voted for such refusal: and Provided, further, That it
shall be a defense to any action under this section that
the person demanding to examine and copy excerpts
from the corporation's records and minutes has
improperly used any information secured through any
prior examination of the records or minutes of such
corporation or of any other corporation, or was not
acting in good faith or for a legitimate purpose in
making his demand.
Stock corporations must also keep a book to be known
as the "stock and transfer book", in which must be
kept a record of all stocks in the names of the
stockholders alphabetically arranged; the installments
paid and unpaid on all stock for which subscription has
been made, and the date of payment of any
installment; a statement of every alienation, sale or
transfer of stock made, the date thereof, and by and
to whom made; and such other entries as the by laws
may prescribe. The stock and transfer book shall be
kept in the principal office of the corporation or in the
office of its stock transfer agent and shall be open for
inspection of any director or stockholder of the
corporation at reasonable hours on business days.
No stock transfer agent or one engaged principally in
the business of registering transfer of stocks in behalf
of a stock corporation shall be allowed to operate in
the Philippines unless he secures a license from the
Securities and Exchange Commission and pays a fee
as may be fixed by the Commission, which shall be
renewed annually: Provided, That a stock corporation
is not precluded from performing or making transfer of
its own stocks, in which case all the rules and
regulations imposed on stock transfer agents, except
the payment of a license fee herein provided, shall be
applicable.
Section 22 imposes the penalty of involuntary
dissolution for non-use of corporate charter. The rest
of the above-quoted provisions, like Sections 31 and
34, provide for civil or pecuniary liabilities for the acts
covered therein but what is significant is the fact that,
of all these provisions that provide for consequences
other than penal, only Section 74 expressly states that
a violation thereof is likewise considered an offense
under Section 144. If respondent and the Court of
Appeals are correct, that Section 144 automatically
imposes penal sanctions on violations of provisions for
which no criminal penalty was imposed, then such
language in Section 74 defining a violation thereof as
an offense would have been superfluous. There would
be no need for legislators to clarify that, aside from
civil liability, violators of Section 74 are exposed to
criminal liability as well. We agree with petitioners that
the lack of specific language imposing criminal liability
in Sections 31 and 34 shows legislative intent to limit
the consequences of their violation to the civil
liabilities mentioned therein. Had it been the intention
of the drafters of the law to define Sections 31 and 34
as offenses, they could have easily included similar
language as that found in Section 74.
If we were to employ the same line of reasoning as
the majority in United States v. R.L.C., would the
apparent ambiguities in the text of the Corporation
Code disappear with an analysis of said statute's
legislative history as to warrant a strict interpretation
of its provisions? The answer is a negative.
In his sponsorship speech of Cabinet Bill (C.B.) No. 3
(the bill that was enacted into the Corporation Code),
then Minister Estelito Mendoza highlighted Sections 31
to 34 as among the significant innovations made to
the previous statute (Act 1459 or the Corporation
Law), thusly:
There is a lot of jurisprudence on the liability of
directors, trustees or officers for breach of trust or
acts of disloyalty to the corporation. Such
jurisprudence is not, of course, without any ambiguity
of dissent. Sections 31, 32, 33 and 34 of the code
indicate in detail prohibited acts in this area as well as
consequences of the performance of such acts or
failure to perform or discharge the responsibility to
direct the affairs of the corporation with utmost
fidelity.[59]
Alternatively stated, Sections 31 to 34 were introduced
into the Corporation Code to define what acts are
covered, as well as the consequences of such acts or
omissions amounting to a failure to fulfil a director's or
corporate officer's fiduciary duties to the corporation.
A closer look at the subsequent deliberations on C.B.
No. 3, particularly in relation to Sections 31 and 34,
would show that the discussions focused on the civil
liabilities or consequences prescribed in said provisions
themselves. We quote the pertinent portions of the
legislative records:
On Section 31
(Period of Sponsorship, December 4, 1979 Session) 
MR. LEGASPI. x x x.
In Section 31 page 22, it seems that the proviso is to
make the directors or the trustees who willfully
and knowingly vote for or assent to patently
unlawful act or guilty of gross negligence or bad
faith in directing the affairs of the corporation
would be solidarity liable with the
officers concerned.
Now, would this, Your Honor, not discourage the
serving of competent people as members of the
Board of Directors, considering that they might
feel that in the event things would do badly
against the corporation, they might be held
liable personally for acts which should be attributed
only to the corporation?
MR. MENDOZA. Your Honor will note that the directors
or trustees who are held liable must be proven to have
acted willfully and knowingly, or if not willfully and
knowingly, it must be proven that they acted with
gross negligence or bad faith. It must also be
demonstrated that the acts done were patently
unlawful. So, the requirement for liability is somewhat
serious to the point of, in my opinion, being extreme.
It will be noted that this provision does not merely
require assenting to patently unlawful acts. It does not
merely require being negligent. The provision requires
that they assent to patently unlawful acts willfully and
with knowledge of the illegality of the act.
Now, it might be true, as Your Honor suggested, that
some persons will be discouraged or disinclined to
agree to serve the Board of Directors because of this
liability. But at the same time this provision -
Section 31 - is really no more than a
consequence of the requirement that the
position of membership in the Board of Directors
is a position of high responsibility and great
trust. Unless a provision such as this is included, then
that requirement of responsibility and trust will not be
as meaningful as it should be. For after all, directors
may take the attitude that unless they themselves
commit the act, they would not be liable. But the
responsibility of a director is not merely to act
properly. The responsibility of a director is to assure
that the Board of Directors, which means his
colleagues acting together, docs not act in a manner
that is unlawful or to the prejudice of the corporation
because of personal or pecuniary interest of the
directors.[60] (Emphases supplied.)
(Period of Amendments, March 11, 1980 Session)
MR. MILLORA. On line 16, Section 31, referring to the
phrase "patently unlawful acts." Before I introduce my
proposed amendment to delete the word "patently'' is
there a reason for placing this adjective before the
word "unlawful", Your Honor?
MR. ABELLO. Probably the one who prepared this
original draft of Cabinet Bill No. 3 wanted to make
sure that a director or trustee is not [made] liable for
an act that is not clearly unlawful, so he used a better
word than "clearly," he used the word "patently."
MR. MILLORA. So, in that case, Your Honor, a
director may not be liable for certain unlawful
acts. Is that right, Your Honor?
MR. ABELLO. Yes, if it is not patently
unlawful. Precisely, the use of the word "patently" is
also to give some kind of protection to the
directors or trustees. Because if you will hold the
directors or trustees responsible for everything,
then no one will serve as director or trustee of
any corporation. But, he is made liable so long as he
willfully and knowingly votes for or assent to patently
unlawful acts of the corporation. So it is also to protect
the director [or] trustees from liability for acts that
was not patently unlawful.
MR. MILLORA. With that explanation, Your Honor, I
will not proceed with my proposed amendment.[61]
On Section 34
(Period of Sponsorship, November 5, 1979 Session)
MR. NUÑEZ. x x x
May I go now to page 24, Section 34.
"Disloyalty of a Director - Where a director by virtue of
his office acquires for himself a business opportunity
which should belong to the corporation thereby
obtaining profits to the prejudice of the corporation, he
must account to the latter for all such profits, unless
his act has been ratified by a vote of the stockholders
owning or representing at least two thirds (2/3) of the
outstanding capital stock. This provision shall be
applicable notwithstanding the fact that the director
risked his own funds in the venture."
My question, Your Honor, is: is this not the so-
called corporate opportunity doctrine found in
the American jurisprudence?
MR. MENDOZA. Yes, Mr. Speaker, as I stated many of
the changes that have been incorporated in the Code
were drawn from jurisprudence on the matter, but
even jurisprudence on several matters or several
issues relating to the Corporation Code are sometimes
ambiguous, sometimes controversial. In order,
therefore, to clarify those issues, what was done
was to spell out in statutory language the rule
that should be applied on those matters and one
of such examples is Section 34.
MR. NUÑEZ. Does not His Honor believe that to codify
this particular document into law may lead to
absurdity or confusion as the cited doctrine is subject
to many qualifications depending on the peculiar
nature of the case?
Let us suppose that there is a business opportunity
that the corporation did not take advantage of or was
not interested in. Would you hold the director
responsible for acquiring the interest despite the fact
that the corporation did not take advantage of or was
not interested in that particular business venture?
Does not His Honor believe that this should be subject
to qualifications and should be dealt with on a case-to-
case basis depending on the circumstances of the
case?
MR. MENDOZA. If a director is prudent or wise
enough, then he can protect himself in such
contingency. If he is aware of a business
opportunity, he can make it known to the
corporation, propose it to the corporation, and
allow the corporation to reject it, after which he,
certainly, may avail of it without risk of the
consequences provided for in Section 34.
MR. NUÑEZ. I see. So that the position of Your Honor
is that the matter should be communicated to the
corporation, the matter of the director acquiring the
business opportunity should be communicated to the
corporation and that if it is not communicated to the
corporation, the director will be responsible. Is that
the position of His Honor?
MR. MENDOZA. In my opinion it must not only be
made known to the corporation; the corporation must
be formally advised and if he really would like to be
assured that he is protected against the
consequences provided for in Section 34, he
should take such steps whereby the opportunity is
clearly presented to the corporation and the
corporation has the opportunity to decide on whether
to avail of it or not and then let the corporation reject
it, after which then he may avail of it. Under such
circumstances I do not believe he would expose
himself to the consequences provided for under
Section 34.
Precisely, the reason we have laid down this ruling in
statutory language is that for as long as the rule is not
clarified there will be ambiguity in the matter. And
directors of corporations who may acquire knowledge
of such opportunities would always be risking
consequences not knowing how the courts will later on
decide such issues. But now with the statutory
rule, any director who comes to know of an
opportunity that may be available to the
corporation would be aware of the
consequences in case he avails of that opportunity
without giving the corporation the privilege of deciding
beforehand on whether to take advantage of it or not.
MR. NUÑEZ. Let us take the case of a corporation
where, from all indications, the corporation was aware
of this business opportunity and despite this fact, Your
Honor, and the failure of the director to communicate
the venture to the corporation, the director entered
into the business venture. Is the director liable, Your
Honor, despite the fact that the corporation has
knowledge, Your Honor, from all indications, from all
facts, from all circumstances of the case, the
corporation is aware?
MR. MENDOZA. First of all, to say that a corporation
has knowledge is itself a point that can be subject of
an argument. When does a corporation have
knowledge - when its president comes to know of the
fact, when its general manager knows of the fact,
when one or two of the directors know of that fact,
when a majority of the directors come to know of that
fact? So that in itself is a matter of great ambiguity,
when one says it has knowledge.
That is why when I said that a prudent director,
who would assure that he does not become
liable under Section 34, should not only be sure
that the corporation has official knowledge, that is, the
Board of Directors, but must take steps, positive
steps, which will demonstrate that the matter or
opportunity was brought before the corporation for its
decision whether to avail of it or not, and the
corporation rejected it.
So, under those circumstances narrated by Your
Honor, it is my view that the director will be liable,
unless his acts are ratified later by the vote of
stockholders holding at least 2/3 of the outstanding
capital stock.
MR. NUÑEZ. Your Honor has already raised the
possible complications that may arise out of this
particular provision. My question is: how can we
remedy the situation? Is there a necessity, Your
Honor, of a formal notice to the corporation that it
should be placed in the agenda, in a meeting or a
special or regular meeting of the corporation that such
a business venture exists, that the corporation should
take advantage of this business venture before a
director can be held not responsible for acquiring this
business venture?
MR. MENDOZA. Well, I believe, as I have stated, Mr.
Speaker, that is what a prudent director should do. If
he does not wish to be in any way handicapped in
availing of business opportunities, he should, to the
same degree, be circumspect in accepting
directorships in corporations. If he wants to be
completely free to avail of any opportunity which may
come his way, he should not accept the position of
director in any corporation which he may anticipate
may be dealing in a business in connection with which
he may acquire a certain interest.
The purpose of all these provisions is to assure
that directors or corporations constantly - not only
constantly remember but actually are imposed with
certain positive obligations that at least would
assure that they will discharge their
responsibilities with utmost fidelity.[62]
(December 5, 1979 Session)
MR. CAMARA. Thank you, Your Honor. May we go to
page 24, lines 1 to 20, Section 34 - Disloyalty of a
director.
Your Honor, it is provided that a director, who by
virtue of his office acquires for himself a business
opportunity which should belong to the corporation
thereby obtaining profits to the prejudice of such
corporation, must account to the corporation for all
such profits unless his act has been ratified by a vote
of the stockholders owning or representing at least
two-thirds (2/3) of the outstanding capital stock.
However, Your Honor, the right to ratification would
serve to defeat the intention of this pro-vision. This is
possible if the director or officer is the controlling
stockholder.
It is, therefore, suggested, Your Honor, that the
twenty per cent (20%) stockholding limit be applied
here in which case, over twenty per cent limit, said
director or officer is disallowed to participate in the
ratification. And this is precisely the point I was driving
at in the previous section, Your Honor.
MR. ABELLO. Your Honor, I see the point that Your
Honor has raised and that wi11 be considered by the
committee at an appropriate time.
MR. CAMARA. Thank you, Your Honor.
Further, under the same provision, it is not clear
as to what "account to the corporation" means
or what it includes. Is the offender liable for the
profits in favor of the corporation?

MR. ABELLO. Yes, that is what it means.
MR. CAMARA. Or he be merely made to accow1t?
MR. ABELLO. Well, Your Honor, when the law says
"He must account to the latter for all such
profits," that means that he is liable to the
corporation for such profits.
MR. CAMARA. Who gets the profits then, Your Honor?
MR. ABELLO. The corporation itself.
MR. CAMARA. The corporation? MR. ABELLO. Correct.
MR. CAMARA. Thank you, Your Honor.
Supposing under the same section, Your Honor, the
director took the opportunity after resigning as
director or officer? It is suggested, Your Honor, that
this should be clarified because the resigning director
can take the opportunity of this transaction before he
resigns.
MR. ABELLO. If Your Honor refers to the fact that he
took that opportunity while he was a director, Section
34, would apply. But if the action was made after his
resignation as a director of the corporation, then
Section 34 would not apply.[63]
(Period of Amendments, March 11, 1980 Session)
MR. CAMARA. This is on Section 34, page 24, line 15, I
propose to insert between the word "profits" and the
comma (,) the words BY REFUNDING THE SAME. So
that the first sentence, lines 11 to 18 of said section,
as modified, shall read as follows:
"SEC. 34. Disloyalty of a director. - Where a director
by virtue of his office acquires for himself a business
opportunity which should belong to the corporation
thereby obtaining profits to the prejudice of such
corporation, he must account to the latter for all such
profits BY REFUNDING THE SAME, unless his act has
been ratified by a vote of the stockholders owning or
representing at least two-thirds (2/3) of the
outstanding capital stock."
The purpose of this amendment, Mr. Speaker, is
to clarify as to what to account to the
corporation.
MR. ABELLO. Mr. Speaker, the committee accepts the
amendment.[64] (Emphases and underscoring
supplied.)
Verily, in the instances that Sections 31 and 34 were
taken up on the floor, legislators did not veer away
from the civil consequences as stated within the four
corners of these provisions. Contrasted with the
interpellations on Section 74 (regarding the right to
inspect the corporate records), the discussions on said
provision leave no doubt that legislators intended both
civil and penal liabilities to attach to corporate officers
who violate the same, as was repeatedly stressed in
the excerpts from the legislative record quoted below:
On Section 74:
(Period of Sponsorship, December 10, 1979 Session)
MR. TUPAZ. x x x I guess, Mr. Speaker, that the
distinguished sponsor has in mind a particular
situation where a minority shareholder is one of the
thousands of shareholders. But I present a situation,
Your Honor, where the minority is 49% owner of a
corporation and here comes this minority shareholder
wanting, but a substantial minority, and yet he cannot
even have access to the records of this corporation
over which he owns almost one-half because,
precisely, of this particular provision of law. [65]
MR. MENDOZA. He will not have access if the grounds
expressed in the proviso are present. It must also be
noted, Mr. Speaker, that the provision before us
would, let us say, make it very difficult for corporate
officers to act unreasonably because they are not
only subject to a suit which would compel them
to allow the access to corporate records, they
are also liable for damages and are in fact guilty
of a penal act under Section 143.[66]
MR. TUPAZ. That is correct, Your Honor.
MR. MENDOZA. So that when corporate officers deny
access to a shareholder, they do so under very serious
consequences. If they should err in making that
decision and it is demonstrated that they have erred
deliberately, they expose themselves
to damages and even to certain penal sanctions.
xxxx
As I said, Your Honor, I think it is fair enough to
assume that persons do not act deliberately in bad
faith, that they do not act deliberately to expose
themselves to damages, or to penal sanctions. In
the ultimate, I would agree that certain decisions may
be unnecessarily harsh and prejudicial. But by and
large, I think, the probabilities are in favor of a
decision being reasonable and in accord with the
interest of the corporation.[67] (Emphases and
underscoring supplied.)
Quite apart that no legislative intent to criminalize
Sections 31 and 34 was manifested in the
deliberations on the Corporation Code, it is noteworthy
from the same deliberations that legislators intended
to codify the common law concepts of corporate
opportunity and fiduciary obligations of corporate
officers as found in American jurisprudence into said
provisions. In common law, the remedies available in
the event of a breach of director's fiduciary duties to
the corporation are civil remedies. If a director or
officer is found to have breached his duty of loyalty,
an injunction may be issued or damages may be
awarded.[68] A corporate officer guilty of fraud or
mismanagement may be held liable for lost profits.
[69]
 A disloyal agent may also suffer forfeiture of his
compensation.[70] There is nothing in the deliberations
to indicate that drafters of the Corporation Code
intended to deviate from common law practice and
enforce the fiduciary obligations of directors and
corporate officers through penal sanction aside from
civil liability. On the contrary, there appears to be a
concern among the drafters of the Corporation Code
that even the imposition of the civil sanctions under
Section 31 and 34 might discourage competent
persons from serving as directors in corporations.
In Crandon v. United States,[71] the U.S. Supreme
Court had the occasion to state that:
In determining the meaning of the statute, we look
not only to the particular statutory language, but
to the design of the statute as a whole and to its
object and policy.Moreover, because the governing
standard is set forth in a criminal statute, it is
appropriate to apply the rule of lenity in resolving any
ambiguity in the ambit of the statute's coverage. To
the extent that the language or history of [the statute]
is uncertain, this "time-honored interpretive guideline"
serves to ensure both that there is fair warning of
the boundaries of criminal conduct and that
legislatures, not courts, define criminal liability.
(Citations omitted; emphases supplied.)
Under the circumstances of this case, we are
convinced to adopt a similar view. For this reason, we
take into account the avowed legislative policy in the
enactment of the Corporation Code as outlined in the
Sponsorship Speech of Minister Mendoza:
Cabinet Bill No. 3 is entitled "The Corporation Code of
the Philippines." Its consideration at this time in the
history of our nation provides a fitting occasion to
remind that under our Constitution the economic
system known as "free enterprise" is recognized
and protected. We acknowledge as a democratic
republic that the individual must be free and that as a
free man - "free to choose his work and to retain the
fruits of his labor" he may best develop his capabilities
and will produce and supply the economic needs
of the nation.
xxxx
The formation and organization of private
corporations, and I underscore private corporations
as distinguished from corporations owned or controlled
by the government or any subdivision or
instrumentality thereof, gives wider dimensions to
free enterprise or free trade. For not only is the
right of individuals to organize collectively recognized;
the collective organization is vested with a juridical
personality distinct from their own. Thus "the skill,
dexterity, and judgment" of a nation's labor force need
not be constricted in their application to those of an
individual or that which he alone may assemble but to
those of a collective organization.
While a code, such as the proposed code now before
us, may appear essentially regulatory in nature,
it does not, and is not intended, to curb or stifle
the use of the corporate entity as a business
organization. Rather, the proposed code recognizes
the value, and seeks to inspire confidence in the value
of the corporate vehicle in the economic life of society.
[72]
 (Emphases supplied.)
The Corporation Code was intended as a regulatory
measure, not primarily as a penal statute. Sections 31
to 34 in particular were intended to impose exacting
standards of fidelity on corporate officers and directors
but without unduly impeding them in the discharge of
their work with concerns of litigation. Considering the
object and policy of the Corporation Code to
encourage the use of the corporate entity as a vehicle
for economic growth, we cannot espouse a strict
construction of Sections 31 and 34 as penal offenses
in relation to Section 144 in the absence of
unambiguous statutory language and legislative intent
to that effect.
When Congress intends to criminalize certain acts it
does so in plain, categorical language, otherwise such
a statute would be susceptible to constitutional attack.
As earlier discussed, this can be readily seen from the
text of Section 45G) of Republic Act No. 8189 and
Section 74 of the Corporation Code.
We stress that had the Legislature intended to attach
penal sanctions to Sections 31 and 34 of the
Corporation Code it could have expressly stated such
intent in the same manner that it did for Section 74 of
the same Code.
At this point, we dispose of some related arguments
raised in the pleadings.
We do not agree with respondent Tullett that previous
decisions of this Court have already settled the matter
in controversy in the consolidated cases at bar. The
declaration of the Court in Home Insurance Company
v. Eastern Shipping Lines[73] that "[t]he prohibition
against doing business without first securing a license
[under Section 133] is now given penal sanction which
is also applicable to other violations of the Corporation
Code under the general provisions of Section 144 of
the Code" is unmistakably obiter dictum. We explained
in another case:
An obiter dictum has been defined as an opinion
expressed by a court upon some question of law that
is not necessary in the determination of the case
before the court. It is a remark made, or opinion
expressed, by a judge, in his decision upon a cause by
the way, that is, incidentally or collaterally, and not
directly upon the question before him, or upon a point
not necessarily involved in the determination of the
cause, or introduced by way of illustration, or analogy
or argument. It does not embody the resolution or
determination of the court, and is made without
argument, or full consideration of the point. It
lacks the force of an adjudication, being a mere
expression of an opinion with no binding force
for purposes of res judicata.[74] (Emphasis
supplied.)
The issue in the Home Insurance Company case was
whether or not a foreign corporation previously doing
business here without a license has the capacity to sue
in our courts when it had already acquired the
necessary license at the time of the filing of the
complaints. The Court ruled in the affirmative. The
statement regarding the supposed penal sanction for
violation of Section 133 of the Corporation Code was
not essential to the resolution of the case as none of
the parties was being made criminally liable under
Section 133.
As for respondent's allusion to Genuino v. National
Labor Relations Commission,[75] we find the same
unavailing. Genuino involved the appeal of an illegal
dismissal case wherein it was merely mentioned in the
narration of facts that the employer-bank also filed
criminal complaints against its dismissed corporate
officers for alleged violation of Section 31 in relation to
Section 144 of the Corporation Code. The
interpretation of said provisions of the Corporation
Code in the context of a criminal proceeding
was not at issue in that case.
As additional support for its contentions, respondent
cites several opinions of the SEC, applying Section 144
to various violations of the Corporation Code in the
imposition of graduated fines. In respondent's view,
these opinions show a consistent administrative
interpretation on the applicability of Section 144 to the
other provisions of the Corporation Code and allegedly
render absurd petitioners' concern regarding the
"over criminalization" of the Corporation Code. We find
respondent's reliance on these SEC opinions to be
misplaced. As petitioners correctly point out, the fines
imposed by the SEC in these instances of violations of
the Corporation Code are in the nature of
administrative fines and are not penal in nature.
Without ruling upon the soundness of the legal
reasoning of the SEC in these opinions, we note that
these opinions in fact support the view that even the
SEC construes "penalty" as used in Section 144 as
encompassing administrative penalties, not only
criminal sanctions. In all, these SEC issuances weaken
rather than strengthen respondent's case.
With respect to the minutiae of other arguments cited
in the parties' pleadings, it is no longer necessary for
the Court to pass upon the same in light of our
determination that there is no clear, categorical
legislative intent to define Sections 31 and 34 as
offenses under Section 144 of the Corporation Code.
We likewise refrain from resolving the question on the
constitutionality of Section 144 of the Corporation
Code. It is a long standing principle in jurisprudence
that "courts will not resolve the constitutionality of a
law, if the controversy can be settled on other
grounds. The policy of the courts is to avoid ruling on
constitutional questions and to presume that the acts
of the poljtica1 departments are valid, absent a clear
and unmistakable showing to the contrary."[76]
WHEREFORE, the consolidated petitions
are GRANTED. The Decision dated August 12, 2009 of
the Court of Appeals in CA-G.R. SP No. 109094 and
the Resolutions dated April 23, 2009 and May 15,
 [9]
2009 of the Secretary of Justice in I.S. No. 08-J-8651  Rollo (G.R. No. 189530), Vol. I, p. 10.
are REVERSED and SET ASIDE.
[10]
 See 2008 General Information Sheet of Tradition
SO ORDERED. Philippines, id. at 240.

[11]
Sereno, C. J., (Chairperson), Del Castillo,  Rollo (G.R. No. 189158), Vol. I, pp. 118-124.
Jardeleza,* and Caguioa, JJ., concur.
[12]
 Id. at 98-111.
*
 Per Raffle dated December 7, 2016. [13]
 Id. at 102-107
[1]
 Rollo (G.R. No. 189158), Vol. I, pp. 64-84; penned [14]
 Id. at 200-254 and 255-295.
by then Court of Appeals Associate Justice Martin S.
Villarama, Jr. (a retired member of this Court) with [15]
 Id. at 203-223.
Associate Justices Vicente S.E. Veloso and Normandie
B. Pizarro concurring. [16]
 Id. at 256-273.
[2]
 Id. at 85-95. [17]
 Id. at 308-313.
[3]
 Id. at 96-97.  [18]
 Article 10 of the Revised Penal Code states:
[4]
 Id. at 19. Art. 10. Offenses not subject to the provisions of this
Code. - Offenses which are or in the future may be
[5]
 Rollo (G.R. No. 189530), Vol. I, p. 7. punishable under special laws are not subject to the
provisions of this Code. This Code shall be
[6]
 Rollo(G.R. No. 189158), Vol. I, pp. 19-22. supplementary to such laws, unless the latter should
specially provide the contrary.
[7]
 See Tullett's 2007 General Information Sheet, id. at
112. [19]
 Rollo (G.R. No. 189158), Vol. I, p. 312.
[8]
 Id. at 21-22. [20]
 Id. at 312.
[21] [37]
 Id. at 323.  517 Phil. 151, 170 (2006).

[22] [38]
 Id. at 314-323.  Ty v. De Jemil, 653 Phil. 356, 369 (2010).

[23] [39]
 Id. at 370-401.  Funa v. Villar, 686 Phil. 571, 583 (2012).

[24] [40]
 208 Phil. 359 (1983).  Deutsche Bank AG v. Court of Appeals, 683 Phil.
80, 88 (2012).
[25]
 Rollo (G.R. No. 189158), Vol. I, pp. 395-397.
[41]
 People v. Grey, 639 Phil. 535, 545 (2010).
[26]
 Id. at 402-411.
[42]
 Chavez v. Court of Appeals, 624 Phil. 396, 400
[27]
 Id. at 429. (2010).

[28] [43]
 Id. at 455-472.  Los Baños v. Pedro, 604 Phil. 215, 227-228 (2009).

[29] [44]
 Id. at 467-469.  Development Bank of the Philippines v. Court of
Appeals, 526 Phil. 525, 548-549 (2006).
[30]
 Id. at 469.
[45]
 London v. Baguio Country Club Corp., 439 Phil.
[31]
 Id. at 470. 487, 492 (2002).

[32] [46]
 Id. at 85-95.  Superlines Transportation Co., Inc. v. Philippine
National Construction Co., 548 Phil. 354, 362 (2007).
[33]
 Id. at 91-93.
[47]
 Victorio-Aquino v. Pacific Plans, Inc., G.R. No.
[34]
 Id. at 81-83. 193108, December 10, 2014, 744 SCRA 480, 499.

[35] [48]
 397 Phil. 641 (2000).  People v. Valdez, G.R. Nos. 216007-09, December
8, 2015.
[36]
 661 Phil. 599, 606 (2011).
[49]
 This Latin legal maxim translates into "when in
doubt, [rule] for the accused."
[50]
 Intestate Estate of Manolita Gonzales Vda. de
Carungcong v. People, 626 Phil. 177, 200 (2010).
[51]
 503 u.s. 291, 305-308 (1992).
[52]
 Id. at 307-308.
[53]
 Criminal penalties are generally understood to be
limited to imprisonment or a fine. In Article 25 of the
Revised Penal Code, penalties for lighter crimes may
include suspension, destierro, public censure and a
bond to keep the peace.
[54]
 We are aware of the existence of other
penal/penalty provisions in various civil statutes.
However, as the constitutionality and proper
interpretation of these provisions vis-a-vis criminal law
principles have not been specifically dealt with in
jurisprudence, it is neither necessary nor practical to
analyze and discuss here the variances in wording or
syntax of every penal/penalty provision in our
jurisdiction. The validity, scope and application of each
penal/penalty provision should be raised and decided
in the proper case.
[55]
 576 Phil. 357 (2008).
[56]
 594 Phil. 680, 739 (2008).
[57]
 Black's Law Dictionary, 6th edition (1990), p. 1133.
[58]
 Smith v. Doe, 538 U.S. 84, 94-95 (2003);
citing U.S. v. One Assortment of 89 Firearms, 465 U.S.
354, 364-365, 104 S.Ct. 1099 (1984).
[59]
 Rollo (G.R. No. 189158), Vol. I, p. 1454. Record of
Batasan (R.B.), Novernber 5, 1979, p. 1214.
[60]
 Id. at 1480; R.B., December 4, 1979, p. 1614.
[61]
 Id. at 1563-1564; R.B., March 11, 1980, pp. 2349-
2350.
[62]
 Id. at 1457-1459; R.B., November 5, 1979, pp.
1217-1219.
[63]
 Id. at 1498; R.B., December 5, 1979, p. 1633.
[64]
 Id. at 1565; R.B., March 11, 1980. p. 2351.
[65]
 Mr. Tupaz's interpellation centered on the proviso
in Section 74 that it is a defense under said section
that the person demanding to see the corporation's
records has improperly used any information secured
through any prior examination or was not acting in
good faith or for a legitimate purpose.
[66]
 This was renumbered as Section 144 when the
Corporation Code was enacted.
[67]
 Rollo (G.R. No. 189158), Vol. I, pp. 1515-1516;
R.B., December 10, 1979, pp. 1695-1696.
[68]
 See Fletcher Cyclopedia of the Law of Corporations,
3 Fletcher Cyc. Corp. § 837.60, September 2016
update.

[69]
 See 3A Fletcher Cyc. Corp. § 1343.

[70]
 See 5A Fletcher Cyc. Corp. § 2185.

[71]
 494 U.S. 152, 110 S.Ct. 997, 1001-1002 (1990).

[72]
 Rollo (G.R. No. 189158) Vol. I, p. 1452; R.B.,
November 5, 1979, p. 1212.

[73]
 208 Phil. 359, 372 (1983).

[74]
 Ocean East Agency, Corp. v. Lopez, G.R. No.
194410, October 14, 2015.
`
[75]
 564 Phil. 315 (2007).

[76]
 Mirasol v. Court of Appeals, 403 Phil. 760, 774
(2001).

Batas.org
 Supreme Court of the Philippines
82 Phil. 172  of service of "destierro."
G.R. No. L-1960, November 26, 1948
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND
APPELLEE, VS. FLORENTINO ABILONG, DEFENDANT
AND APPELLANT.
MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of First Instance of
Manila with evasion of service of sentence under the following
information:
"That on or about the 17th. day of September, 1947, in the City of
Manila, Philippines, the said accused, being then a convict sentenced
and ordered to serve two (2) years, four (4) months and one (1) day
of destierro during which he should not enter any place within the
radius of 100 kilometers from the City of Manila, by virtue of final
judgment rendered by the municipal court on April 5, 1946, in
criminal case No. B-4795 for attempted robbery, did then and there
wilfully, unlawfully and feloniously evade the service of said
sentence by going beyond the limits made against him and commit
vagrancy.
"Contrary to law."
Upon arraignment he pleaded guilty and was sentenced to two (2)
years, four (4) months and one (1) day of prisión correccional, with
the accessory penalties of the law and to pay the costs.  He is
appealing from that vision with the following assignment of error:
1. The lower court erred in imposing a penalty on the accused under
article 157 of the Revised Penal Code, which does not cover evasion
Counsel for the appellant contends that a person like the accused
evading a sentence of destierro is not criminally liable under the
provisions of the Revised Penal Code, particularly article 157 of the
said Code for the reason that said article 157 refers only to persons
who are imprisoned in a penal institution and completely deprived of
their liberty.  He bases his contention on the word "imprisonment"
used in the English text of said article which in part reads as follows:
"Evasion of service of sentence. —The penalty of prisión
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final
judgment."
The Solicitor General in his brief says that had the original text of the
Revised Penal Code been in the English language, then the theory of
the appellant could be upheld.  However, it is the Spanish text that is
controlling in case of doubt.  The Spanish text of article 157 in part
reads thus:
"ART. 157. Quebrantamiento de sentencia.—Será castigado
con prision correccional en sus grados medio y máximo el
sentenciado que quebrantare su condena, fugándose mientras
estuviere sufriendo privación de libertad por sentencia firme; * * *."
We agree with the Solicitor General that inasmuch as the Revised
Penal Code was originally approved and enacted in Spanish, the
Spanish text governs (People vs. Manaba, 58 Phil., 665, 668). It is
clear that the word "imprisonment" used in the English text is a
wrong or erroneous translation of the phrase "sufriendo privacion de
libertad used in the Spanish text. It is equally clear that although the
Solicitor General impliedly admits destierro as not constituting
imprisonment, it is a deprivation of liberty, though partial, in the
sense that as in the present case, the appellant by his sentence
of destierro was deprived of the liberty to enter the City of Manila.
This view has been adopted in the case of People vs. Samonte, No.
36553 (July 26, 1932; 57 Phil., 968)  wherein this Court held, as
quoted in the brief of the Solicitor General that "it is clear that a
person under sentence of destierro is suffering deprivation of his
liberty and escapes from the restrictions of the penalty when he
enters the prohibited area." Said ruling in that case was ratified by
this Court, though, indirectly in the case of People vs. Jose de Jesus,
(45 Off. Gaz. Supp. to No. 9, p. 370)[1], where it was held that one
evades the service of his sentence of destierro when he enters the
prohibited area specified in the judgment of conviction, and he
cannot invoke the provisions of the Indeterminate Sentence Law
which provides that its provisions do not apply to those who shall
have escaped from confinement or evaded sentence.
In conclusion we find and hold that the appellant is guilty of evasion
of service of sentence under article 157 of the Revised Penal Code
(Spanish text), in that during the period of his sentence
of destierro by virtue of final judgment wherein he was prohibited
from entering the City of Manila, he entered said City.
Finding no reversible error in the decision appealed from, the same is
hereby affirmed with costs against the appellant.  So ordered.
Moran, C. J., Parás, Feria, Pablo, Bengzon, and Tuason,
JJ., concur.
 80 Phil., 746.
[1]
PERFECTO, J., dissenting:
The legal question raised in this case is whether or not appellant, for
having violated his judgment of destierro rendered by the Municipal
Court of Manila, can be sentenced under article 157 of the Revised
Penal Code which reads as follows:
"Evasion of service of sentence.—The penalty of prisión
correccíonal W its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by
escaping during the term of his imprisonment by reason of final
judgment.  However, if such evasion or escape shall have taken place
by means of unlawful entry, by breaking doors, windows, gates,
walls, roofs, or floors, or by using picklocks, false keys, disguise,
deceit, violence or intimidation, or through connivance with other
convicts or employees of the penal institution, the penalty shall
be prision correctional in its maximum period."
Appellant invokes in his favor the negative opinion of author
Guillermo Guevara (Revised Penal Code, 1946, p. 322). This
negative position is supported by another author, Ambrosio Padilla
(Revised Penal Code annotated, p. 474).
The prosecution invokes the decision of this Court in People vs. De
Jesus, L-1414, [2] promulgated April 16, 1948, but said decision has
no application because in said case the legal question involved in the
case at bar was not raised.  The Supreme Court did not consider the
question of interpretation of the wording of article 157. 
Undoubtedly, there was occasion for considering the question, but
the Court nevertheless failed to do so.  This failure to see the
question, at the time, is only an evidence that the tribunal is
composed of human beings for whom infallibility is beyond reach.
The prosecution maintains that appellant's contention, supported by
two authors who have considered the question, although tenable
under the English text of article 157, is not so under the Spanish text,
which is the one controlling because the Revised Penal Code was
originally enacted by the Legislature in Spanish.

There is no quarrel, therefore, that under the above-quoted English
text, the appellant is entitled to acquittal. The question now is
whether or not the Spanish text conveys a thing different from that
which can be read in the English text.   The Spanish text reads as
follows:
"ART. 157. Quebrantamiento de sentencia.—Será castigado con
prisión correccional en sus grados medio y máximo el sentenciado
que quebrantare su condena, fugándose mientras estuviere sufriendo
privación de libertad por sentencia firme; pero si la evasión o fuga se
hubiere llevado a efecto con escalamiento, fractura de puertas,
ventanas, verjas, paredes, techos o suelos, o empleando ganzuas,
llaves falsas, disfraz, engaño, violencia o intimidatión, o poniéndose
de acuerdo con otros sentenciados o dependientes del
establecimiento donde a hallare recluido la pena será prisión
correccional en su grado máximo."
The question boils down to the words "fugándose mientras estuviere
sufriendo privación de libertad por sentencia firme," which are
translated into English "by escaping during the term of his
imprisonment by reason of final judgment."  The prosecution
contends that the words "privación de libertad" in the Spanish text is
not the same as the word "imprisonment" in the English text, and that
while "imprisonment" cannot include destierro, "privación de
libertad" may include it.
The reason is, however, the result of a partial point of view, because
it obliterates the grammatical, logical, ideological function of the
words "fugándose" and "by escaping" in the Spanish and English
texts, respectively.  There should not be any question that, whatever
meaning we may want to give to the words "privación de libertad," it
has to be conditioned by the verb "fugándose," (by escaping).
"Privación de libertad" cannot be considered independently of
"fugándose."
There seems to be no question that the Spanish "fugándose" is
correctly translated into the English "by escaping."  Now, is there
any sense in escaping fromdestierro or banishment, where there is no
enclosure binding the hypothetical fugitive?  "Fugándose" is one of
the forms of the Spanish verb "fugar," to escape.  The specific idea
of "evasion" or "escape" is reiterated by the use of said words after
the semi-colon in the Spanish text and after the first period in the
English text.  Either the verb "to escape" or the substantive noun
"escape" essentially presupposes some kind of imprisonment or
confinement, except figuratively, and Article 157 does not talk in
metaphors or parables.
"To escape" means "to get away, as by flight or other conscious
effort; to break away, get free, or get clear, from or out of detention,
danger, discomfort, or the like; as to escape from prison.  To issue
from confinement or enclosure of any sort; as gas escapes from the
mains." (Webster's New International Dictionary.)
"Escape" means "act of escaping, or fact or having escaped; evasion
of or deliverance from injury or any evil; also the means of escape. 
The unlawful departure of a prisoner from the limits of his custody. 
When the prisoner gets out of prison and unlawfully regains his
liberty, it is an actual escape." (Webster's New International
Dictionary.)
"Evasion" means "escape." (Webster's New International
Dictionary.)
The "destierro" imposed on appellant banished him from Manila
alone, and he was free to stay in all the remaining parts of the
country, and to go and stay in any part of the globe outside the
country.  With freedom to move all over the world, it is farfetched to
allege that he is in any confinement from which he could escape.
The words "privación de libertad" have been correctly translated into
the English "imprisonment," which gives the idea exactly conveyed
by "privación de libertad" in the Spanish text. Undoubtedly, the
drafters of the latter could have had used a more precise Spanish
word, but the literary error cannot be taken as a pretext to give to the
less precise words a broader meaning than is usually given to them.
"Privación de libertad," literally meaning "deprivation of liberty or
freedom," has always been used by jurist using the Spanish language
to mean "imprisonment."  They have never given them the
unbounded philosophical scope that would lead to irretrievable
absurdities.
article 157, which appear to be disproportionate and arbitrary,
because they place on equal footing the evader of a sentence of one
day of imprisonment and a life-termer, one who commits an
insignificant offense and one who perpetrates the most heinous
crime. At any rate, this is a problem for Congress to solve.
The appealed decision should be set aside.

Under that unlimited scope, no single individual in the more than

two billion inhabitants of the world can be considered free, as the
freest citizen of the freest country is subject to many limitations or BRIONES, J.:
deprivations of liberty.  Under the prosecution's theory, should an
accused, sentenced to pay a fine of one peso, evade the payment of I concur in the foregoing dissenting opinion, because evidently the
it, because the fine deprives him of liberty to dispose of his one peso, word "fugándose" in the Spanish text refers to imprisonment, not
he will be liable to be punished under article 157 of the Revised to destierro.
Penal Code to imprisonment of from more than two years to six
years.  The iniquity and cruelty of such situation are too glaring and Judgment affirmed.
violent to be entertained for a moment under our constitutional
framework.

There is no gainsaying the proposition that to allow the violation of a

sentence of destierro without punishment is undesirable, but even  80 Phil., 746.
[2]

without applying article 157 of the Revised Penal Code, the act of
the appellant cannot remain unpunished, because his violation of the
sentence of destierro may be punished as contempt of court, for
which imprisonment-up to six months is provided. Batas.org 

It is deplorable that article 157 should not provide for a situation

presented in this case, but the gap cannot be filled by this Court
without encroaching upon the legislative powers of Congress.

Perhaps it is better that evasions of sentence be punished, as

provided by the old Penal Code, by an increase in the evaded
penalty. This will be more reasonable than the penalties provided by

SECOND DIVISION
G.R. No. 225695, March 21, 2018
IRENEO CAHULOGAN, PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review
on certiorari[1] filed by petitioner Ireneo Cahulogan
(petitioner) assailing the Decision[2] dated November
6, 2015 and the Resolution[3] dated June 8, 2016 of
the Court of Appeals (CA) in CA-G.R. CR No. 01126-
MIN, which affirmed the Judgment[4] dated October 4,
2013 of the Regional Trial Court of Cagayan De Oro
City, Misamis Oriental, Branch 41 (RTC) in Crim. Case
No. 2011-507, convicting petitioner of the crime of
Fencing, defined and penalized under Presidential
Decree No. (PD) 1612, otherwise known as the "Anti-
Fencing Law of 1979."[5]
The Facts
On April 18, 2011, an Information[6] was filed before
the RTC charging petitioner with the crime of Fencing,
the accusatory portion of which reads:
That on or about January 14, 2011 [,] at about 4:00
o'clock [sic] in the afternoon, at Bugo, Cagayan de Oro
City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without
the knowledge and consent of the owner thereof, did
then and there wilfully, unlawfully and feloniously buy,
receive, possess, keep, acquire, conceal, sell or
dispose of, or in any manner deal, Two Hundred Ten
(210) cases of Coca Cola products worth
Php52,476.00 owned by and belonging to the offended
party Johnson Tan which accused know, or should be
known to him, to have been derived from the proceeds
of the crime of Theft, to the damage and prejudice of
said owner in the aforesaid sum of Php52,476.00.
Contrary to Presidential Decree No. 1612, otherwise
known as Anti-Fencing Law of 1979.[7]
The prosecution alleged that private complainant
Johnson Tan (Tan), a businessman engaged in
transporting Coca-Cola products, instructed his truck
driver and helper, Braulio Lopez (Lopez) and Loreto
Lariosa (Lariosa), to deliver 210 cases of Coca-Cola
products (subject items) worth P52,476.00 to Demins
Store. The next day, Tan discovered that contrary to
his instructions, Lopez and Lariosa delivered the
subject items to petitioner's store. Tan then went to
petitioner and informed him that the delivery to his
store was a mistake and that he was pulling out the
subject items. However, petitioner refused, claiming
that he bought the same from Lariosa for P50,000.00,
but could not present any receipt evidencing such
transaction. Tan insisted that he had the right to pull
out the subject items as Lariosa had no authority to
sell the same to petitioner, but the latter was adamant
in retaining such items. Fearing that his contract with
Coca-Cola will be terminated as a result of the
wrongful delivery, and in order to minimize losses, Tan
negotiated with petitioner to instead deliver to him
P20,000.00 worth of empty bottles with cases, as
evidenced by their Agreement[8] dated January 18,
2011. Nonetheless, Tan felt aggrieved over the
foregoing events, thus, prompting him to secure an
authorization to file cases from Coca-Cola and charge
petitioner with the crime of Fencing. He also claimed
to have charged Lariosa with the crime of Theft but he
had no update as to the status thereof.[9]
Upon arraignment, petitioner pleaded not guilty, [10] but
chose not to present any evidence in his defense.
Rather, he merely submitted his memorandum,
[11]
 maintaining that the prosecution failed to prove his
guilt beyond reasonable doubt.[12]
The RTC Ruling
In a Judgment[13] dated October 4, 2013, the RTC
found petitioner guilty beyond reasonable doubt of the
crime charged, and accordingly, sentenced him to
suffer the penalty of imprisonment for the
indeterminate period often (10) years and one (1) day
of prision mayor, as minimum, to fifteen (15) years
of reclusion temporal, as maximum.[14]
The RTC found that the prosecution had successfully
established the presence of all the elements of the
crime of Fencing, considering that Lariosa stole the
subject items from his employer, Tan, and that
petitioner was found to be in possession of the same.
The RTC noted that under the circumstances of the
case, petitioner would have been forewarned that the
subject items came from an illegal source since
Lariosa: (a) sold to him the subject items at a discount
and without any corresponding delivery and official
receipts; and (b) did not demand that such items be
replaced by empty bottles, a common practice in
purchases of soft drink products.[15]
Aggrieved, petitioner appealed[16] to the CA.
The CA Ruling
In a Decision[17] dated November 6, 2015, the CA
affirmed petitioner's conviction.[18] It held that
Lariosa's act of selling the subject items to petitioner
without the authority and consent from Tan clearly
constituted theft. As such, petitioner's possession of
the stolen items constituted prima facie evidence of
Fencing - a presumption which he failed to rebut.[19]
Undaunted, petitioner moved for
reconsideration[20] which was, however, denied in a
Resolution[21] dated June 8, 2016; hence, this petition.
The Issue Before the Court
The issue for the Court's resolution is whether or not
the CA correctly upheld petitioner's conviction for the
crime of Fencing.
The Court's Ruling
The petition is without merit.
"Time and again, it has been held that an appeal in
criminal cases opens the entire case for review, and it
is the duty of the reviewing tribunal to correct, cite,
and appreciate errors in the appealed judgment
whether they are assigned or unassigned. The appeal
confers the appellate court full jurisdiction over the
case and renders such court competent to examine
records, revise the judgment appealed from, increase
the penalty, and cite the proper provision of the penal
law."[22]
Guided by this consideration, the Court finds no
reason to overturn petitioner's conviction for the crime
of Fencing.
Section 2 of PD 1612 defines Fencing as "the act of
any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in
any other manner deal in any article, item, object or
anything of value which he knows, or should be known
to him, to have been derived from the proceeds of the
crime of robbery or theft."[23] The same Section also
states that a Fence "includes any person, firm,
association, corporation or partnership or other
organization who/which commits the act of fencing."[24]
The essential elements of the crime of fencing are as
follows: (a) a crime of robbery or theft has been
committed; (b) the accused, who is not a principal or
an accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or
anything of value, which has been derived from the
proceeds of the crime of robbery or theft; (c) the
accused knew or should have known that the said
article, item, object or anything of value has been
derived from the proceeds of the crime of robbery or
theft; and (d) there is, on the part of one accused,
intent to gain for oneself or for another.[25] Notably,
Fencing is a malum prohibitum, and PD 1612 creates
a prima facie presumption of Fencing from evidence of
possession by the accused of any good, article, item,
object or anything of value, which has been the
subject of robbery or theft; and prescribes a higher
penalty based on the value of the property.[26]
In this case, the courts a quo correctly found that the
prosecution was able to establish beyond reasonable
doubt all the elements of the crime of Fencing, as it
was shown that: (a) Lariosa sold to petitioner the
subject items without authority and consent from his
employer, Tan, for his own personal gain, and abusing
the trust and confidence reposed upon him as a truck
helper;[27] (b) petitioner bought the subject items from
Lariosa and was in possession of the same; (c) under
the circumstances, petitioner should have been
forewarned that the subject items came from an illegal
source, as his transaction with Lariosa did not have
any accompanying delivery and official receipts, and
that the latter did not demand that such items be
replaced with empty bottles, contrary to common
practice among dealers of soft drinks; [28] and (d)
petitioner's intent to gain was made evident by the
fact that he bought the subject items for just
P50,000.00, lower than their value in the amount of
P52,476.00. "[T]he Court finds no reason to deviate
from the factual findings of the trial court, as affirmed
by the CA, as there is no indication that it overlooked,
misunderstood or misapplied the surrounding facts
and circumstances of the case. In fact, the trial court
was in the best position to assess and determine the
credibility of the witnesses presented by both parties,
and hence, due deference should be accorded to the
same."[29]
Anent the proper penalty to be imposed on petitioner,
pertinent portions of Section 3 of PD 1612 read:
Section 3. Penalties. - Any person guilty of fencing
shall be punished as hereunder indicated:
a) The penalty of prision mayor, if the value of the
property involved is more than 12,000 pesos but not
exceeding 22,000 pesos; if the value of such property
exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not
exceed twenty years. In such cases, the penalty shall
be termed reclusion temporal and the accessory
penalty pertaining thereto provided in the Revised
Penal Code shall also be imposed.
xxxx
Notably, while the crime of Fencing is defined and
penalized by a special penal law, the penalty provided
therein is taken from the nomenclature in the Revised
Penal Code (RPC). In Peralta v. People,[30] the Court
discussed the proper treatment of penalties found in
special penal laws vis-a-vis Act No. 4103,[31] otherwise
known as the "Indeterminate Sentence Law," viz.:
Meanwhile, Sec. 1 of Act No. 4103, otherwise known
as the Indeterminate Sentence Law (ISL), provides
that if the offense is ostensibly punished under a
special law, the minimum and maximum prison term
of the indeterminate sentence shall not be beyond
what the special law prescribed. Be that as it may, the
Court had clarified in the landmark ruling of People v.
Simon that the situation is different where although
the offense is defined in a special law, the penalty
therefor is taken from the technical nomenclature in
the RPC. Under such circumstance, the legal effects
under the system of penalties native to the Code
would also necessarily apply to the special law.[32]
Otherwise stated, if the special penal law adopts the
nomenclature of the penalties under the RPC, the
ascertainment of the indeterminate sentence will be
based on the rules applied for those crimes punishable
under the RPC.[33]
Applying the foregoing and considering that there are
neither mitigating nor aggravating circumstances
present in this case, the Court finds it proper to
sentence petitioner to suffer the penalty of
imprisonment for an indeterminate period of four (4)
years, two (2) months, and one (1) day of prision
correccional, as minimum, to fifteen (15) years
of reclusion temporal, as maximum.
At this point, the Court notes that as may be gleaned
from its whereas clauses, PD 1612 was enacted in
order to provide harsher penalties to those who would
acquire properties which are proceeds of the crimes of
Robbery or Theft, who prior to the enactment of said
law, were punished merely as accessories after the
fact of the said crimes.[34] This rationale was echoed
in Dizon-Pamintuan v. People[35] where the Court held
that while a Fence may be prosecuted either as an
accessory of Robbery/Theft or a principal for Fencing,
there is a preference for the prosecution of the latter
as it provides for harsher penalties:
Before P.D. No. 1612, a fence could only be
prosecuted for and held liable as an accessory, as the
term is defined in Article 19 of the Revised Penal Code.
The penalty applicable to an accessory is obviously
light under the rules prescribed in Articles 53, 55, and
57 of the Revised Penal Code, subject to the
qualification set forth in Article 60 thereof. Noting,
however, the reports from law enforcement agencies
that "there is rampant robbery and thievery of
government and private properties" and that "such
robbery and thievery have become profitable on the
part of the lawless elements because of the existence
of ready buyers, commonly known as fence, of stolen
properties," P.D. No. 1612 was enacted to "impose
heavy penalties on persons who profit by the effects of
the crimes of robbery and theft." Evidently, the
accessory in the crimes of robbery and theft could be
prosecuted as such under the Revised Penal Code or
under P.D. No. 1612. However, in the latter case, he
ceases to be a mere accessory but becomes
a principal in the crime of fencing. Elsewise stated, the
crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct
offenses. The state may thus choose to prosecute him
either under the Revised Penal Code or P.D. No. 1612,
although the preference for the latter would seem
inevitable considering that fencing is a malum
prohibitum, and P.D. No. 1612 creates a presumption
of fencing and prescribes a higher penalty based on
the value of the property.[36]
While PD 1612 penalizes those who acquire properties
which are proceeds of Robbery or Theft, its prescribed
penalties are similar to the latter crime in that they
are largely dependent on the value of the said
properties. In fact, a reading of Section 3 of PD 1612
and Article 309 of the RPC (which provides for the
prescribed penalties for the crime of Theft) reveals
that both provisions use the same graduations of
property value to determine the prescribed penalty; in
particular, if the value: (a) exceeds P22,000.00, with
additional penalties for each additional P10,000.00;
(b) is more than P12,000.00 but not exceeding
P22,000.00; (c) is more than P6,000.00 but not
exceeding P12,000.00; (d) is more than P200.00 but
not exceeding P6,000.00; (e) is more than P50.00 but
not exceeding P200.00; and (f) does not exceed
P5.00. However, with the recent enactment of
Republic Act No. 10951,[37] which adjusted the values
of the property and damage on which various
penalties are based, taking into consideration the
present value of money, as opposed to its archaic
values when the RPC was enacted in 1932,[38] the
graduation of values in Article 309 was substantially
amended, without any concomitant adjustment for PD
1612. This development would then result in instances
where a Fence, which is theoretically a mere accessory
to the crime of Robbery/Theft, will be punished more
severely than the principal of such latter crimes. This
incongruence in penalties therefore, impels an
adjustment of penalties.
However, while it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited
judicial legislation.[39] As the Court remains mindful of
the fact that the determination of penalties is a policy
matter that belongs to the legislative branch of the
government, it finds it prudent to instead, furnish both
Houses of Congress, as well as the President of the
Republic of the Philippines, through the Department of
Justice, pursuant to Article 5[40] of the RPC, copies of
this ruling in order to alert them on the aforestated
incongruence of penalties, all with the hope of arriving
at the proper solution to this predicament.
WHEREFORE, the petition is DENIED. The Decision
dated November 6, 2015 and the Resolution dated
June 8, 2016 of the Court of Appeals (CA) in CA-G.R.
CR No. 01126-MIN finding petitioner Ireneo
Cahulogan GUILTY beyond reasonable doubt of the
crime of Fencing defined and penalized under
Presidential Decree No. 1612, otherwise known as the
"Anti-Fencing Law,"
are AFFIRMED with MODIFICATION, sentencing
him to suffer the penalty of imprisonment for the
indeterminate period of four (4) years, two (2)
months, and one (1) day of prision correccional, as
minimum, to fifteen (15) years of reclusion temporal,
as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a
copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of
Justice, the President of the Senate, and the Speaker
of the House of Representatives.
SO ORDERED.
Carpio,* Acting C. J., (Chairperson), Peralta, Caguioa,
and Reyes, Jr., JJ., concur.
*
 Acting Chief Justice per Special Order No. 2539 dated
February 28, 2018.
[1] [14]
 Rollo, pp. 3-12.  See id. at 34.

[2] [15]
 Id. at 16-30. Penned by Associate Justice Rafael  See id. at 30-33.
Antonio M. Santos with Associate Justices Edgardo A.
[16]
Camello and Henri Jean Paul B. Inting, concurring.  See Notice of Appeal dated October 17, 2013;
records, pp. 211-212.
[3]
 Id. at 39-41. Penned by Associate Justice Rafael
[17]
Antonio M. Santos with Associate Justices Edgardo A.  Rollo, pp. 16-30.
Camello and Edgardo T. Lloren, concurring.
[18]
 See id. at 29.
[4]
 CA rollo, pp. 28-34. Penned by Presiding Judge
[19]
Jeoffre W. Acebido.  See id. at 20-29.

[5] [20]
 (March 2, 1979).  See motion for reconsideration dated January 12,
2016; id. at 31-37.
[6]
 Records, p. 2.
[21]
 Id. at 39-41.
[7]
 Id.
[22]
 See Rivac v. People, G.R. No. 224673, January 22,
[8]
 Id. at 17. 2018.

[9] [23]
 See rollo, pp. 18-19 and CA rollo, pp. 29-30.  See Section 2 (a) of PD 1612.

[10] [24]
 Rollo, p. 17 and CA rollo, p. 29.  See Section 2 (b) of PD 1612.

[11] [25]
 See Memorandum for the Accused dated June 18,  Ong v. People, 708 Phil. 565, 571 (2013);
2013; records, pp. 170-171. citing Capili v. CA, 392 Phil. 577, 592 (2000).

[12] [26]
 See rollo, p. 19 and CA rollo, p. 30.   Ong v. People; id. at 574; citing Dizon-Pamintuan
v. People, G.R. No. 111426, July 11, 1994, 234 SCRA
[13]
 CA rollo, pp. 28-34. 63, 72. See also Section 5 of PD 1612 which reads:

Section 5. Presumption of Fencing. — Mere possession
of any good, article, item, object, or anything of value
which has been the subject of robbery or thievery shall
be prima facieevidence of fencing.
[27]
 In Lim v. People (G.R. No. 211977, October 12,
2016, 806 SCRA 1, 12), it has been held that
conviction of a principal in the crime of theft is not
necessary for an accused to be found guilty of the
crime of Fencing.
[28]
 "[Circumstances normally exist to forewarn, for
instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of
robbery or theft. Such circumstances include the time
and place of the sale, both of which may not be in
accord with the usual practices of commerce. The
nature and condition of the goods sold, and the fact
that the seller is not regularly engaged in the business
of selling goods may likewise suggest the illegality of
their source, and therefore should caution the buyer.
This justifies the presumption found in Section 5 of
P.D. No. 1612 that 'mere possession of any
goods, . . ., object or anything of value which has
been the subject of robbery or thievery shall be prima
facie evidence of fencing' — a presumption that is,
according to the Court, 'reasonable for no other
natural or logical inference can arise from the
established fact of. . . possession of the proceeds of
the crime of robbery or theft.'" (Ong v. People, supra
note 25, at 573; citing Dela Torre v. COMELEC, 327
Phil. 1144, 1154-1155 [1996].)
[29]
 See Peralta v. People, G.R. No. 221991, August 30,
2017, citing People v. Matibag, 757 Phil. 286, 293
(2015).
[30]
 See id.
[31]
 Entitled "AN ACT TO PROVIDE FOR AN
INDETERMINATE SENTENCE AND PAROLE FOR ALL
PERSONS CONVICTED OF CERTAIN CRIMES BY THE
COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A
BOARD OF INDETERMINATE SENTENCE AND TO
PROVIDE FUNDS THEREFOR, AND FOR OTHER
PURPOSES" (December 5, 1933).
[32]
 See Peralta v. People, supra note 29;
citing Quimvel v. People, G.R. No. 214497, April 18,
2017.
[33]
 See Peralta v. People, id.; citing Mabunot v. People,
GR. No. 204659, September 19, 2016, 803 SCRA 349,
364.
[34]
 The whereas clauses of PD 1612 read:
WHEREAS, reports from law enforcement agencies
reveal that there is rampant robbery and thievery of
government and private properties;
WHEREAS, such robbery and thievery have become
profitable on the part of the lawless elements because
of the existence of ready buyers, commonly known as
fence, of stolen properties;
WHEREAS, under existing law, a fence can be and shall report to the Chief Executive, through the
prosecuted only as an accessory after the fact and Department of Justice, the reasons which induce the
punished lightly; court to believe that said act should be made the
subject of penal legislation.
WHEREAS, it is imperative to impose heavy penalties
on persons who profit by the effects of the crimes of In the same way, the court shall submit to the Chief
robbery and theft. Executive, through the Department of Justice, such
[35]
statement as may be deemed proper, without
 Supra note 26.
suspending the execution of the sentence, when a
[36]
strict enforcement of the provisions of this Code would
 Id. at 71-72; citations omitted.
result in the imposition of a clearly excessive penalty,
[37]
taking into consideration the degree of malice and the
 Entitled "AN ACT ADJUSTING THE AMOUNT OR THE
injury caused by the offense.
VALUE OF PROPERTY AND DAMAGE ON WHICH A
PENALTY IS BASED, AND THE FINES IMPOSED UNDER
THE REVISED PENAL CODE, AMENDING FOR THE
PURPOSE ACT NO. 3815, OTHERWISE KNOWN AS 'THE
REVISED PENAL CODE,' AS AMENDED" approved on
Batas.org
August 29, 2017.

[38]
 See Rivac v. People, G.R. No. 224673, January 22,
2018, supra note 22.

[39]
 Corpuz v. People, 734 Phil. 353, 425 (2014).

[40]
 Article 5 of the RPC reads:

Article 5. Duty of the court in connection with acts

which should be repressed but which are not covered
by the law, and in cases of excessive penalties. -
Whenever a court has knowledge of any act which it
may deem proper to repress and which is not
punishable by law, it shall render the proper decision,
 Supreme Court of the Philippines
492 Phil. 60  and feloniously, draw and issue UCPB Check No. 284743 postdated
SECOND DIVISION
G.R. NO. 141066, February 17, 2005
EVANGELINE LADONGA, PETITIONER, VS. PEOPLE OF
THE PHILIPPINES, RESPONDENT.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,
[1]
 dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No.
20443, affirming the Decision dated August 24, 1996, of the
Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case
Nos. 7068, 7069 and 7070 convicting her of violation of B.P. Blg.
22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg.
22 were filed with the RTC, docketed as Criminal Case Nos. 7068 -
7070. The Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, and mutually
helping with one another, knowing fully well that they did not have
sufficient funds deposited with the United Coconut Planters Bank
(UCPB), Tagbilaran Branch, did then and there willfully, unlawfully,
July 7, 1990 in the amount of NINE THOUSAND SEVENTY-FIVE
PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55), payable to
Alfredo Oculam, and thereafter, without informing the latter that
they did not have sufficient funds deposited with the bank to cover
up the amount of the check, did then and there willfully, unlawfully
and feloniously pass on, indorse, give and deliver the said check to
Alfredo Oculam by way of rediscounting of the aforementioned
checks; however, upon presentation of the check to the drawee bank
for encashment, the same was dishonored for the reason that the
account of the accused with the United Coconut Planters Bank,
Tagbilaran Branch, had already been closed, to the damage and
prejudice of the said Alfredo Oculam in the    aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa
Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos.
7069 and 7070 are similarly worded, except for the allegations
concerning the number, date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July
22, 1990 in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 – UCPB Check No. 106136 dated July
22, 1990 in the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on
June 26, 1991, the two accused pleaded not guilty to the crimes
charged.[5]

The prosecution presented as its lone witness complainant Alfredo
Oculam. He testified that: in 1989, spouses Adronico[6] and
Evangeline Ladonga became his regular customers in his pawnshop
business in Tagbilaran City, Bohol;[7] sometime in May 1990, the
Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by
United Coconut Planters Bank (UCPB) Check No. 284743, post
dated to dated July 7, 1990 issued by Adronico;[8] sometime in the
last week of April 1990 and during the first week of May 1990, the
Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26,
1990 issued by Adronico;[9] between May and June 1990, the
Ladonga spouses obtained a third loan in the amount of P8,496.55,  one year for each of them and a fine of P8,496.55 equivalent
guaranteed by UCPB Check No. 106136, post dated to July 22, 1990
issued by Adronico;[10] the three checks bounced upon presentment
for the reason “CLOSED ACCOUNT”;[11] when the Ladonga
spouses failed to redeem the check, despite repeated demands, he
filed a criminal complaint against them.[12]
While admitting that the checks issued by Adronico bounced because
there was no sufficient deposit or the account was closed, the
Ladonga spouses claimed that the checks were issued only to
guarantee the obligation, with an agreement that Oculam should not
encash the checks when they mature;[13] and, that petitioner is not a
signatory of the checks and had no participation in the issuance
thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the
Ladonga spouses guilty beyond reasonable doubt of violating B.P.
Blg. 22, the dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding
accused Adronico Ladonga, alias Ronie, and Evangeline Ladonga
guilty beyond reasonable doubt in the aforesaid three (3) criminal
cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:    
1. In Criminal Case No. 7068, for (sic) an imprisonment of one
(1) year for each of them, and a fine in the amount of
P9,075.55, equivalent to the amount of UCPB Check No.
284743;
    
2. In Criminal Case No. 7069, for (sic) an imprisonment for
each of them to one (1) year and a fine of P12, 730.00,
equivalent to the amount of UCPB Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of
to the    amount of UCPB Check No. 106136;
    
4. That both accused are further ordered to jointly and
solidarily pay and reimburse the complainant, Mr. Alfredo
Oculam, the sum of P15,000.00 representing actual expenses
incurred in prosecuting the instant cases; P10,000.00 as
attorney’s fee; and the amount of P30,302.10 which is the
total value of the three (3) subject checks which bounced;
but without subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other
hand, petitioner brought the case to the Court of Appeals, arguing
that the RTC erred in finding her criminally liable for conspiring
with her husband as the principle of conspiracy is inapplicable
to B.P. Blg. 22 which is a special law; moreover, she is not a
signatory of the checks and had no participation in the issuance
thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made
applicable to special penal laws in the decisions of this Court
in People vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It
noted that Article 10 of the Revised Penal Code itself provides that
its    provisions shall be supplementary to special laws unless the
latter provide the contrary. The Court of Appeals stressed that
since B.P. Blg. 22 does not prohibit the applicability in a suppletory
character of the provisions of the Revised Penal Code (RPC), the
principle of conspiracy may be applied to cases involving violations
of B.P. Blg. 22. Lastly, it ruled that the fact that petitioner did not
make and issue or sign the checks did not    exculpate her from
criminal liability as it is not indispensable that a co-conspirator takes
a direct part in every act and knows the part which everyone
performed. The Court of Appeals underscored that in conspiracy the
act of one conspirator could be held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of
Appeals denied the same in a Resolution dated November 16, 1999.
[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:     She posits that the application of the principle of conspiracy would
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT
THE DRAWER OR ISSUER OF THE THREE CHECKS
THAT BOUNCED BUT HER CO-ACCUSED HUSBAND
UNDER THE LATTER’S ACCOUNT COULD BE HELD
LIABLE FOR VIOLATIONS OF BATAS PAMBANSA
BILANG 22 AS CONSPIRATOR.
    
2. ANCILLARY TO THE MAIN ISSUE ARE THE
FOLLOWING ISSUES:     that B.P. Blg. 22 does not provide any prohibition regarding the
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY
INVOKING THE LAST SENTENCE OF ARTICLE 10 OF
THE REVISED PENAL CODE WHICH STATES:
    Art. 10. Offenses not subject of the provisions of this
Code. – Offenses which are or in the future may be punished
under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless
the latter should specially provide the contrary.
    
B. WHETHER OR NOT THE CASES CITED BY THE
HONORABLE COURT OF APPEALS IN AFFIRMING IN
TOTO THE CONVICTION OF PETITIONER AS
CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO
SPECIAL LAWS LIKE B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable
for violation of B.P. Blg. 22 because she had no participation in the
drawing and issuance of the three checks subject of the three
criminal cases, a fact proven by the checks themselves. She contends
that the Court of Appeals gravely erred in applying the principle of
conspiracy, as defined under the RPC, to violations of B.P. Blg. 22.
enlarge the scope of the statute and include situations not provided
for or intended by the lawmakers, such as penalizing a person, like
petitioner, who had no participation in the drawing or issuance of
checks.
The Office of the Solicitor General disagrees with petitioner and
echoes the declaration of the Court of Appeals that some provisions
of the Revised Penal Code, especially with the addition of the second
sentence in Article 10, are applicable to special laws. It submits
applicability in a suppletory character of the provisions of the of penal laws if they favor the accused. U.S. vs. Ponte involved the
Revised Penal Code to it. application of Article 17[29] of the same Penal Code, with reference to
the participation of principals in the commission of the crime of
Article 10 of the RPC reads as follows: misappropriation of public funds as defined and penalized by Act
ART. 10. Offenses not subject to the provisions of this Code. – No. 1740. U.S. vs. Bruhez covered Article 45[30] of the same Code,
Offenses which are or in the future may be punishable under special with reference to the confiscation of the instruments used in violation
laws are    not subject to the provisions of this Code. This Code shall of Act No. 1461, the Opium Law.
be supplementary to such laws, unless the latter should specially
provide the contrary. B.P. Blg. 22 does not expressly proscribe the suppletory application
of the provisions of the RPC. Thus, in the absence of contrary
The article is composed of two clauses. The first provides that
provision in B.P. Blg. 22, the general provisions of the RPC which,
offenses which in the future are made punishable under special laws
by their nature, are necessarily applicable, may be applied
are not subject to the provisions of the RPC, while the second makes
suppletorily. Indeed, in the recent case of Yu vs. People,[31] the Court
the RPC supplementary to such laws. While it seems that the two
applied suppletorily the provisions on subsidiary imprisonment under
clauses are contradictory, a sensible interpretation will show that
Article 39[32] of the RPC to B.P. Blg. 22.
they can perfectly be reconciled.
The suppletory application of the principle of conspiracy in this case
The first clause should be understood to mean only that the special
is analogous to the application of the provision on principals under
penal laws are controlling with regard to offenses therein specifically
Article 17 in U.S. vs. Ponte. For once conspiracy or action in concert
punished. Said clause only restates the elemental rule of statutory
to achieve a criminal design is shown, the act of one is the act of all
construction that special legal provisions prevail over general ones.
the conspirators, and the precise extent or modality of participation
[24]
 Lex specialis derogant generali. In fact, the clause can be
of each of them becomes secondary, since all the conspirators are
considered as a superfluity, and could have been eliminated
principals.[33]
altogether. The second clause contains the soul of the article. The
main idea and purpose of the article is embodied in the provision that
All these notwithstanding, the conviction of the petitioner must be
the "code shall be supplementary" to special laws, unless the latter
set aside.
should specifically provide the contrary.
Article 8 of the RPC provides that “a conspiracy exists when two or
The appellate court’s reliance on the cases of People vs. Parel,
more persons come to an agreement concerning the commission of a
[25]
 U.S. vs. Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis.
felony and decide to commit it.” To be held guilty as a co-principal
These cases involved the suppletory application of principles under
by reason of conspiracy, the accused must be shown to have
the then Penal Code to special laws. People vs. Parel  is concerned
performed an overt act in pursuance or furtherance of the complicity.
with the application of Article 22[28] of the Code to violations of Act [34]
 The overt act or acts of the accused may consist of active
No. 3030, the Election Law, with reference to the retroactive effect
participation in the actual commission of the crime itself or may
consist of moral assistance to his co-conspirators by moving them to established as clearly as any element of the crime. Evidence to prove
execute or implement the criminal plan.[35] it must be positive and convincing, considering that it is a convenient
and simplistic device by which the accused may be ensnared and
In the present case, the prosecution failed to prove that petitioner kept within the penal fold.
performed any overt act in furtherance of the alleged conspiracy. As
testified to by the lone prosecution witness, complainant Alfredo Criminal liability cannot be based on a general allegation of
Oculam, petitioner was merely present when her husband, Adronico, conspiracy, and a judgment of conviction must always be founded on
signed the check subject of Criminal Case No. 7068. [36] With respect the strength of the prosecution’s evidence. The Court ruled thus
to Criminal Case Nos. 7069-7070, Oculam also did not describe the in People v. Legaspi, from which we quote:
details of petitioner’s participation. He did not specify the nature of
At most, the prosecution, realizing the weakness of its evidence
petitioner’s involvement in the commission of the crime, either by a
against accused-appellant Franco, merely relied and pegged the
direct act of participation, a direct inducement of her co-conspirator,
latter’s criminal liability on its sweeping theory of conspiracy, which
or cooperating in the commission of the offense by another act
to us, was not attendant in the commission of the crime.
without which it would not have been accomplished. Apparently, the
only semblance of overt act that may be attributed to petitioner is
The rule is firmly entrenched that a judgment of conviction must be
that she was present when the first check was issued. However, this
predicated on the strength of the evidence for the prosecution and not
inference cannot be stretched to mean concurrence with the criminal
on the weakness of the evidence for the defense. The proof against
design.
him must survive the test of reason; the strongest suspicion must not
be permitted to sway judgment. The conscience must be satisfied that
Conspiracy must be established, not by conjectures, but by positive
on the defense could be laid the responsibility for the offense
and conclusive evidence.[37] Conspiracy transcends mere
charged; that not only did he perpetrate the act but that it amounted
companionship and mere presence at the scene of the crime does not
to a crime. What is required then is moral certainty.
in itself amount to conspiracy.[38] Even knowledge, acquiescence in
or agreement to cooperate, is not enough to constitute one as a party
Verily, it is the role of the prosecution to prove the guilt of the
to a conspiracy, absent any active participation in the commission of
appellant beyond reasonable doubt in order to overcome the
the crime with a view to the furtherance of the common design and
constitutional presumption of innocence.
purpose.[39]
In sum, conviction must rest on hard evidence showing that the
As the Court eloquently pronounced in a case of recent accused is guilty beyond reasonable doubt of the crime charged. In
vintage, People vs. Mandao:[40] criminal cases, moral certainty -- not mere possibility -- determines
the guilt or the innocence of the accused. Even when the evidence for
To be sure, conspiracy is not a harmless innuendo to be taken lightly
the defense is weak, the accused must be acquitted when the
or accepted at every turn. It is a legal concept that imputes
prosecution has not proven guilt with the requisite quantum of proof
culpability under specific circumstances; as such, it must be
required in all criminal cases. (Citations omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner  Also known as Ronie.
[6]

with moral certainty. Its evidence falls short of the quantum of proof
required for conviction. Accordingly, the constitutional presumption  TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[7]

of the petitioner’s innocence must be upheld and she must be

acquitted.  Id., pp. 16-21.
[8]

WHEREFORE, the instant petition is GRANTED. The assailed  TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[9]

Decision, dated May 17, 1999, of the Court of Appeals in CA-G.R.

CR No. 20443 affirming the Decision, dated August 24, 1996, of the [10]
 TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
Regional Trial Court (Branch 3), Bohol, in Criminal Case Nos. 7068,
7069 and 7070 convicting the petitioner of violation of B.P. Blg.  TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19;
[11]

22 is hereby REVERSED and SET ASIDE. Petitioner Evangeline
Ladonga is ACQUITTED of the charges against her under B.P. Blg.
22 for failure of the prosecution to prove her guilt beyond reasonable
doubt. No pronouncement as to costs.
TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 1 and
3; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1;
Original Records, p. 128.
 TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2
[12]

SO ORDERED. and 4; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 2;

Original Records, p. 125.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ.,
concur.  TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp.
[13]

7-8, 11-12 and 15; TSN of December 20, 1993, Testimony of

Adronico Ladonga, p. 18.
 Penned by Justice Buenaventura J. Guerrero (now retired) and
[1]

concurred in by Justices Portia Alino-Hormachuelos and Eloy R.  TSN of August 23, 1993, Testimony of Evangeline Ladonga, p.
[14]

Bello (now retired). 10; TSN of December 20, 1993, Testimony of Adronico Ladonga,
pp. 24-26.
 Original Records, pp. 1-2.
[2]
[15]
 Original Records, p. 124.
 Id., p. 3.
[3]
[16]
 Id., p. 126.
 Id., p. 5.
[4]
[17]
 Court of Appeals (CA) Rollo, p. 28.
 Id., pp. 29-31.
[5]
[18]
 Rollo, p. 133.
 3. Those who cooperate in the commission of the offense by
 No. 18260, January 27, 1923, 44 Phil. 437.
[19]
another act without which it would not have been
accomplished.
 No. 5952, October 24, 1911, 20 Phil. 379.
[20]

 ART. 45. Confiscation and forfeiture of the proceeds or

[30]

 No. 9268, November 4, 1914, 28 Phil. 305.

[21] instruments of the crime. – Every penalty imposed for the
commission of a felony shall carry with it the forfeiture of the
 Rollo, p. 39.
[22] proceeds of the crime and the instruments or tools with which it was
committed.
 Rollo, pp. 69-70.
[23]

Such proceeds and instruments or tools shall be confiscated and

 Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No.
[24] forfeited in favor of the Government, unless they be the property of a
138570, October 10, 2000, 342 SCRA 449, 483. third person not liable for the offense, but those articles which are
not subject of lawful commerce shall be destroyed.
 Note No. 19, supra.
[25]

 G.R. No. 134172, September 20, 2004.

[31]

 Note No. 20, supra.

[26]

 ART. 39. Subsidiary penalty. – If the convict has no property with

[32]

 Note No. 21, supra.

[27]
 ART. 22. Retroactive effect of penal laws. – Penal laws shall have
[28]
a retroactive effect insofar as they favor the person guilty of a felony,
who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of
such laws a final sentence has been pronounced and the convict is
serving the same.
 ART. 17. Principals. – The following are considered principals:  
[29]
1. Those who take a direct part in the execution of the act;
    
2. Those who directly force or induce others to commit it;
    
which to meet the fine mentioned in paragraph 3 of the next
preceding article, he shall be subject to a subsidiary personal liability
at the rate of one day for each eight pesos, subject to the following
rules:    
1. If the principal penalty imposed be prision correccional or
arresto and fine, he shall remain under confinement until his
fine referred in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the
term of the sentence, and in no case shall it continue for
more than one year, and no fraction or part of a day shall be
counted against the prisoner.
    
2. When the principal penalty imposed be only a fine, the
subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave
 felony, and shall not exceed fifteen days, if for a light felony. SCRA 540, 553; People vs. Melencion, G.R. No. 121902, March 26,
     2001, 355 SCRA 113, 123.
3. When the principal penalty imposed is higher than prision
correccional no subsidiary imprisonment shall be imposed  People vs. Leaño, G.R. No. 138886, October 9, 2001, 366 SCRA
[38]

upon the culprit. 774; People vs. Compo, G.R. No. 112990, May 28, 2001, 358 SCRA
     266, 272.
4. If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is of
 People vs. Natividad, G.R. No. 151072, September 23, 2003, 411
[39]
fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to suffer the SCRA 587, 595.
same deprivation as those of which the principal penalty
consists.  People vs. Mandao, G.R. No. 135048, December 3, 2002, 393
[40]

     SCRA 292.
5. The subsidiary personal liability which the convict may have
suffered by reason of his insolvency shall not relieve him  Id., pp. 304-305.
[41]

from the fine in case his financial circumstances should

improve.

 People vs. Felipe, G.R. No. 142505, December 11, 2003, 418
[33]
Batas.org 
SCRA 146, 176; People vs. Julianda, Jr., G.R. No. 128886,
November 23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R.
No. 142430, September 13, 2001, 365 SCRA 252, 266.

 People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414
[34]

SCRA 19, 33; People vs. Bisda, G.R. No. 140895, July 17, 2003, 406
SCRA 454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991,
June 18, 2003, 404 SCRA 275, 291.

 People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400

[35]

SCRA 424, 437; People vs. Ponce, G.R. No. 126254, September 29,
2000, 341 SCRA 352, 359-360.

 TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.

[36]

 People vs. Tamayo, G.R. No. 138608, September 24, 2002,

[37]
 Supreme Court of the Philippines
G.R. No. 93028 
EN BANC
G.R. No. 93028, July 29, 1994
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
VS. MARTIN SIMON Y SUNGA,* RESPONDENT.  Pejoro, all members of the same unit. After securing marked
DECISION
REGALADO, J.:
Herein accused-appellant Martin Simon y Sunga was
charged on November 10, 1988 with a violation of Section 4,
Article II of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972, under an
indictment alleging that on or about October 22, 1988, at
Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea
bags of marijuana to a Narcotics Command (NARCOM)
poseur-buyer in consideration of the sum of P40.00, which tea
bags, when subjected to laboratory examination, were found
positive for marijuana.[1]
Eventually arraigned with the assistance of counsel on
March 2, 1989, after his rearrest following his escape from
Camp Olivas, San Fernando, Pampanga where he was
temporarily detained,[2] he pleaded not guilty. He voluntarily
waived his right to a pre-trial conference,[3] after which trial on
the merits ensued and was duly concluded.
I
The evidence on record shows that a confidential
informant, later identified as a NARCOM operative, informed
the police unit at Camp Olivas, San Fernando, Pampanga, of
the illegal drug activities of a certain "Alyas Pusa" at Sto.
Cristo, Guagua, Pampanga. Capt. Francisco Bustamante,
Commanding Officer of the 3rd Narcotics Regional Unit in the
camp, then formed a buy-bust team composed of Sgt.
Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo
money from Bustamante, the team, together with their
informant, proceeded to Sto. Cristo after they had coordinated
with the police authorities and barangay officers thereof. When
they reached the place, the confidential informer pointed out
appellant to Lopez who consequently approached appellant
and asked him if he had marijuana. Appellant answered in the
affirmative and Lopez offered to buy two tea bags. Appellant
then left and, upon returning shortly thereafter, handed to
Lopez two marijuana tea bags and Lopez gave him the
marked money amounting to P40.00 as payment. Lopez then
scratched his head as a pre-arranged signal to his
companions who were stationed around ten to fifteen meters
away, and the team closed in on them. Thereupon, Villaruz,
who was the head of the back-up team, arrested appellant.
The latter was then brought by the team to the 3rd Narcotics
Regional Unit at Camp Olivas on board a jeep and he was
placed under custodial investigation, with Sgt. Pejoro as the
investigator.[4]
Pfc. Villaruz corroborated Lopez' testimony, claiming that
he saw the deal that transpired between Lopez and the
appellant. He also averred that he was the one who
confiscated the marijuana and took the marked money from
appellant.[5]
Sgt. Domingo Pejoro, for his part, declared that although
he was part of the buy-bust team, he was stationed farthest
from the rest of the other members, that is, around two
hundred meters away from his companions. He did not
actually see the sale that transpired between Lopez and
appellant but he saw his teammates accosting appellant after
the latter's arrest. He was likewise the one who conducted the
custodial investigation of appellant wherein the latter was
apprised of his rights to remain silent, to information and to
counsel. Appellant, however, orally waived his right to counsel.
[6]
Pejoro also claimed having prepared Exhibit "G," the
"Receipt of Property Seized/Confiscated" which appellant
signed, admitting therein the confiscation of four tea bags of
marijuana dried leaves in his possession. Pejoro likewise
informed the court below that, originally, what he placed on the
receipt was that only one marijuana leaf was confiscated in
exchange for P20.00. However, Lopez and Villaruz corrected
his entry by telling him to put "two," instead of "one" and "40,"
instead of "20". He agreed to the correction since they were
the ones who were personally and directly involved in the
purchase of the marijuana and the arrest of appellant.[7]
Dr. Pedro S. Calara, a medical officer at Camp Olivas,
examined appellant at 5:30 P.M. of the day after the latter's
apprehension, and the results were practically normal except
for his relatively high blood pressure. The doctor also did not
find any trace of physical injury on the person of appellant. The
next day, he again examined appellant due to the latter's
complaint of gastro-intestinal pain. In the course of the
examination, Dr. Calara discovered that appellant has a
history of peptic ulcer, which causes him to experience
abdominal pain and consequently vomit blood. In the
afternoon, appellant came back with the same complaint but,
except for the gastro-intestinal pain, his physical condition
remained normal.[8]
As expected, appellant tendered an antipodal version of
the attendant facts, claiming that on the day in question, at
around 4:30 P.M., he was watching television with the
members of his family in their house when three persons,
whom he had never met before suddenly arrived. Relying on
the assurance that they would just inquire about something
from him at their detachment, appellant boarded a jeep with
them. He was told that they were going to Camp Olivas, but he
later noticed that they were taking a different route. While on
board, he was told that he was a pusher so he attempted to
alight from the jeep but he was handcuffed instead. When they
finally reached the camp, he was ordered to sign some papers
and, when he refused, he was boxed in the stomach eight or
nine times by Sgt. Pejoro. He was then compelled to affix his
signature and fingerprints on the documents presented to him.
He denied knowledge of the P20.00 or the dried marijuana
leaves, and insisted that the twenty-peso bill came from the
pocket of Pejoro. Moreover, the reason why he vomited blood
was because of the blows he suffered at the hands of Pejoro.
He admitted having escaped from the NARCOM office but
claimed that he did so since he could no longer endure the
maltreatment to which he was being subjected. After escaping,
he proceeded to the house of his uncle, Bienvenido Sunga, at
San Matias, Guagua, reaching the place at around 6:30 or
7:30 P.M. There, he consulted a quack doctor and, later, he
was accompanied by his sister to the Romana Pangan District
Hospital at Floridablanca, Pampanga where he was confined
for three days.[9]
Appellant's brother, Norberto Simon, testified to the fact
that appellant was hospitalized at Floridablanca, Pampanga
after undergoing abdominal pain and vomiting of blood. He
likewise confirmed that appellant had been suffering from
peptic ulcer even before the latter's arrest. [10] Also, Dr. Evelyn
Gomez-Aguas, a resident physician of Romana Pangan
District Hospital, declared that she treated appellant for three
days due to abdominal pain, but her examination revealed that
the cause for this ailment was appellant's peptic ulcer. She did
not see any sign of slight or serious external injury, abrasion or
contusion on his body.[11]
On December 4, 1989, after weighing the evidence
presented, the trial court rendered judgment convicting
appellant for a violation of Section 4, Article II of Republic Act
No. 6425, as amended, and sentencing him to suffer the
penalty of life imprisonment, to pay a fine of twenty thousand
pesos and to pay the costs. The four tea bags of marijuana
dried leaves were likewise ordered confiscated in favor of the
Government.[12]
Appellant now prays the Court to reverse the
aforementioned judgment of the lower court, contending in his
assignment of errors that the latter erred in (1) not upholding
his defense of "frame-up," (2) not declaring Exhibit "G"
(Receipt of Property Seized/Confiscated) inadmissible in
evidence, and (3) convicting him of a violation of the
Dangerous Drugs Act.[13]
At the outset, it should be noted that while the People's
real theory and evidence is to the effect that appellant actually
sold only two tea bags of marijuana dried leaves, while the
other two tea bags were merely confiscated subsequently from
his possession,[14] the latter not being in any way connected
with the sale, the information alleges that he sold and
delivered four tea bags of marijuana dried leaves.[15] In view
thereof, the issue presented for resolution in this appeal is
merely the act of selling the two tea bags allegedly committed
by appellant, and does not include the disparate and distinct
issue of illegal possession of the other two tea bags which
separate offense is not charged herein.[16]
To sustain a conviction for selling prohibited drugs, the
sale must be clearly and unmistakably established. [17] To sell
means to give, whether for money or any other material
consideration.[18] It must, therefore, be established beyond
doubt that appellant actually sold and delivered two tea bags
of marijuana dried leaves to Sgt. Lopez, who acted as the
poseur-buyer, in exchange for two twenty-peso bills.
After an assiduous review and calibration of the evidence
adduced by both parties, we are morally certain that appellant
was caught in flagrante delicto engaging in the illegal sale of
prohibited drugs. The prosecution was able to prove beyond a
scintilla of doubt that appellant, on October 22, 1988, did sell
two tea bags of marijuana dried leaves to Sgt. Lopez. The
latter himself creditably testified as to how the sale took place
and his testimony was amply corroborated by his teammates.
As between the straightforward, positive and corroborated
testimony of Lopez and the bare denials and negative
testimony of appellant, the former undeniably deserves greater
weight and is more entitled to credence.
We are aware that the practice of entrapping drug
traffickers through the utilization of poseur-buyers is
susceptible to mistake, harassment, extortion and abuse.
[19]
 Nonetheless, such causes for judicial apprehension and
doubt do not obtain in the case at bar. Appellant's entrapment
and arrest were not effected in a haphazard way, for a
surveillance was conducted by the team before the buy-bust
operation was effected.[20] No ill motive was or could be
attributed to them, aside from the fact that they are presumed
to have regularly performed their official duty. [21] Such lack of
dubious motive coupled with the presumption of regularity in
the performance of official duty, as well, as the findings of the
trial court on the credibility of witnesses, should prevail over
the self-serving and uncorroborated claim of appellant of
having been framed,[22] erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught red-
handed delivering prohibited drugs, and while there was a
delimited chance for him to controvert the charge, he does not
appear to have plausibly done so.
When the drug seized was submitted to the Crime
Laboratory Service of the then Philippine Constabulary-
Integrated National Police (PC-INP) at Camp Olivas for
examination, P/Cpl. Marlyn Salangad, a forensic chemist
therein,[23] confirmed in her Technical Report No. NB-448-88
that the contents of the four tea bags confiscated from
appellant were positive for and had a total weight of 3.8 grams
of marijuana.[24] Thus, the corpus delicti of the crime had been
fully proved with certainty and conclusiveness.[25]
Appellant would want to make capital of the alleged
inconsistencies and improbabilities in the testimonies of the
prosecution witnesses. Foremost, according to him, is the
matter of who really confiscated the marijuana tea bags from
him since, in open court, Pejoro asserted that he had nothing
to do with the confiscation of the marijuana, but in the
aforementioned "Receipt of Property Seized/Confiscated," he
signed it as the one who seized the same.[26]
Suffice it to say that whether it was Villaruz or Pejoro who
confiscated the marijuana will not really matter since such is
not an element of the offense with which appellant is charged.
What is unmistakably clear is that the marijuana was
confiscated from the possession of appellant. Even,
assuming arguendo that the prosecution committed an error
on who actually seized the marijuana from appellant, such an
error or discrepancy refers only to a minor matter and, as
such, neither impairs the essential integrity of the prosecution
evidence as a whole nor reflects on the witnesses' honesty.
[27]
Besides, there was clearly a mere imprecision of language
since Pejoro obviously meant that he did not take part in
the physical taking of the drug from the person of appellant,
but he participated in the legal seizure or confiscation thereof
as the investigator of their unit.
Next, appellant adduces the argument that the twenty-
peso bills allegedly confiscated from him were not powdered
for finger-printing purposes contrary to the normal procedure in
buy-bust operations.[28] This omission has been satisfactorily
explained by Pfc. Virgilio Villaruz in his testimony, as follows:
"Q: Is it the standard operating procedure of your unit that in
conducting such operation you do not anymore provide a powder
(sic) on the object so as to determine the thumbmark or identity of
the persons taking hold of the object?
A: We were not able to put powder on these denominations because
we are lacking that kind of material in our office since that item can
be purchased only in Manila and only few are producing that, sir.
xxx
Q:   Is it not a fact that your office is within (the) P.C. Crime
Laboratory, CIS, as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a
request for that powder because they, themselves, are using that in
their own work, sir."[29]
The foregoing explanation aside, we agree that the failure
to mark the money bills used for entrapment purposes can
under no mode of rationalization be fatal to the case of the
prosecution because the Dangerous Drugs Act punishes "any
person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of
such transactions."[30] The dusting of said bills with
phosphorescent powder is only an evidentiary technique for
identification purposes, which identification can be supplied by
other species of evidence.
Again, appellant contends that there was neither a relative
of his nor any barangay official or civilian to witness the
seizure. He decries the lack of pictures taken before, during
and after his arrest. Moreover, he was not reported to or
booked in the custody of any barangay official or police
authorities.[31] These are absurd disputations. No law or
jurisprudence requires that an arrest or seizure, to be valid, be
witnessed by a relative, a barangay official or any other
civilian, or be accompanied by the taking of pictures. On the
contrary, the police enforcers having caught appellant
in flagrante delicto, they were not only authorized but were
also under the obligation to effect a warrantless arrest and
seizure.
Likewise, contrary to appellant's contention, there was an
arrest report prepared by the police in connection with his
apprehension. Said Booking Sheet and Arrest
Report[32] states, inter alia, that "suspect was arrested for
selling two tea bags of suspected marijuana dried leaves and
the confiscation of another two tea bags of suspected
marijuana dried leaves." Below these remarks was affixed
appellant's signature. In the same manner, the receipt for the
seized property, hereinbefore mentioned, was signed by
appellant wherein he acknowledged the confiscation of the
marked bills from him.[33]
However, we find and hereby declare the aforementioned
exhibits inadmissible in evidence. Appellant's conformance to
these documents are declarations against interest and tacit
admissions of the crime charged. They were obtained in
violation of his right as a person under custodial investigation
for the commission of an offense, there being nothing in the
records to show that he was assisted by counsel. [34] Although
appellant manifested during the custodial investigation that he
waived his right to counsel, the waiver was not made in writing
and in the presence of counsel,[35] hence whatever
incriminatory admission or confession may be extracted from
him, either verbally or in writing, is not allowable in evidence.
[36]
 Besides, the arrest report is self-serving and hearsay and
can easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid
exhibits, appellant cannot thereby be extricated from his
predicament since his criminal participation in the illegal sale
of marijuana has been sufficiently proven. The commission of
the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction [37] which happens
the moment the buyer receives the drug from the seller. [38] In
the present case, and in light of the preceding discussion, this
sale has been ascertained beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he
would sell marijuana to a total stranger.[39] We take this
opportunity to once again reiterate the doctrinal rule that drug-
pushing, when done on a small scale as in this case, belongs
to that class of crimes that may be committed at any time and
in any place.[40] It is not contrary to human experience for a
drug pusher to sell to a total stranger,[41]for what matters is not
an existing familiarity between the buyer and seller but their
agreement and the acts constituting the sale and delivery of
the marijuana leaves.[42] While there may be instances where
such sale could be improbable, taking into consideration the
diverse circumstances of person, time and place, as well as
the incredibility of how the accused supposedly acted on that
occasion, we can safely say that those exceptional particulars
are not present in this case.
Finally, appellant contends that he was subjected to
physical and mental torture by the arresting officers which
caused him to escape from Camp Olivas the night he was
placed under custody.[43]This he asserts to support his
explanation as to how his signatures on the documents earlier
discussed were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our
jurisprudence that for evidence to be believed, it must not only
proceed from the mouth of a credible witness but must be
credible in itself such as the common experience and
observation of mankind can approve as probable under the
circumstances.[44] The evidence on record is bereft of any The provisions of the aforesaid amendatory law, pertinent
support for appellant's allegation of maltreatment. Two to the adjudication of the case at bar, are to this effect:
doctors, one for the prosecution[45] and the other for the
"SEC. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No.
defense,[46] testified on the absence of any tell-tale sign or
6425, as amended, known as the Dangerous Drugs Act of 1972, are
indication of bodily injury, abrasions or contusions on the
hereby amended to read as follows:
person of appellant. What is evident is that the cause of his
abdominal pain was his peptic ulcer from which he had been xxx
suffering even before his arrest.[47] His own brother even
corroborated that fact, saying that appellant has had a history ‘SEC. 4. Sale, Administration, Delivery, Distribution and
of bleeding peptic ulcer.[48] Transportation of Prohibited Drugs. - The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand
Furthermore, if it is true that appellant was maltreated at
pesos to ten million pesos shall be imposed upon any person who,
Camp Olivas, he had no reason whatsoever for not divulging
unless authorized by law, shall sell, administer, deliver, give away to
the same to his brother who went to see him at the camp after
another, distribute, dispatch in transit or transport any prohibited
his arrest and during his detention there. [49] Significantly, he
drug, or shall act as a broker in any of such transactions.'
also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite
the opportunity to do so[50] and with the legal services of xxx
counsel being available to him. Such omissions funnel down to "SEC. 17. Section 20, Article IV of Republic Act No. 6425, as
the conclusion that appellant's story is a pure fabrication. amended, known as the Dangerous Drugs Act of 1972, is hereby
amended to read as follows:
These, and the events earlier discussed, soundly refute
his allegations that his arrest was baseless and premeditated
‘Sec. 20. Application of Penalties, Confiscation and Forfeiture of the
for the NARCOM agents were determined to arrest him at all
Proceeds or Instrument of the Crime. - The penalties for offenses
costs.[51]Premeditated or not, appellant's arrest was only the
under Sections 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15
culmination, the final act needed for his isolation from society
and 16 of Article III of this Act shall be applied if the dangerous
and it was providential that it came about after he was caught
drugs involved is in any of the following quantities:
in the very act of illicit trade of prohibited drugs. Accordingly,
this opinion could have concluded on a note of affirmance of
the judgment of the trial court. However, Republic Act No. xxx
6425, as amended, was further amended by Republic Act No.
7659 effective December 31, 1993, [52] which supervenience 5. 750 grams or more of indian hemp or
necessarily affects the original disposition of this case and marijuana
entails additional questions of law which we shall now resolve.
xxx
II
‘Otherwise, if the quantity involved is less than the foregoing
quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the
quantity.' "
1. Considering that herein appellant is being
prosecuted for the sale of four tea bags of
marijuana with a total weight of only 3.8 grams
and, in fact, stands to be convicted for the sale of
only two of those tea bags, the initial inquiry would
be whether the patently favorable provisions of
Republic Act No. 7659 should be given retroactive
effect to entitle him to the lesser penalty provided
thereunder, pursuant to Article 22 of the Revised
Penal Code.
Although Republic Act No. 6425 was enacted as a special
law, albeit originally amendatory and in substitution of the
previous Articles 190 to 194 of the Revised Penal Code, [53] it
has long been settled that by force of Article 10 of said Code
the beneficent provisions of Article 22 thereof applies to and
shall be given retrospective effect to crimes punished by
special laws.[54] The exception in said article would not apply to
those convicted of drug offenses since habitual delinquency
refers to convictions for the third time or more of the crimes of
serious or less serious physical injuries, robo, hurto, estafa or
falsification.[55]
Since, obviously, the favorable provisions of Republic Act
No. 7659 could neither have then been involved nor invoked in
the present case, a corollary question would be whether this
court, at the present stage, can sua sponte apply the
provisions of said Article 22 to reduce the penalty to be
imposed on appellant. That issue has likewise been resolved
in the cited case of People vs. Moran, et al., ante., thus:
"x x x. The plain precept contained in article 22 of the Penal Code,
declaring the retroactivity of penal laws in so far as they are
favorable to persons accused of a felony, would be useless and
nugatory if the courts of justice were not under obligation to fulfill
such duty, irrespective of whether or not the accused has applied for
it, just as would also all provisions relating to the prescription of the
crime and the penalty."
If the judgment which could be affected and modified by
the reduced penalties provided in Republic Act No. 7659 has
already become final and executory or the accused is serving
sentence thereunder, then practice, procedure and pragmatic
considerations would warrant and necessitate the matter being
brought to the judicial authorities for relief under a writ
of habeas corpus.[56]
2. Probably through oversight, an error on the matter
of imposable penalties appears to have been
committed in the drafting of the aforesaid law,
thereby calling for and necessitating judicial
reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act
No. 6425, as now further amended, imposes the penalty
of reclusion perpetua to death and a fine ranging from
P500,000.00 to P10,000,000.00 upon any person who shall
unlawfully sell, administer, deliver, give away, distribute,
dispatch in transit or transport any prohibited drug. That
penalty, according to the amendment to Section 20 of the law,
shall be applied if what is involved is 750 grams or more of
indian hemp or marijuana; otherwise, if the quantity involved is
less, the penalty shall range from prision
correccional to reclusion perpetua depending upon the
quantity.
In other words, there is here an overlapping error in the
provisions on the penalty of reclusion perpetua by reason of its
dual imposition, that is, as the maximum of the penalty where
the marijuana is less than 750 grams, and also as the
minimum of the penalty where the marijuana involved is 750
grams or more. The same error has been committed with
respect to the other prohibited and regulated drugs provided in
said Section 20. To harmonize such conflicting provisions in
order to give effect to the whole law, [57] we hereby hold that the
penalty to be imposed where the quantity of the drugs involved
is less than the quantities stated in the first paragraph shall
range from prision correccional to reclusion temporal, and
not reclusion perpetua. This is also concordant with the
fundamental rule in criminal law that all doubts should be
construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the
dangerous drug is only 3.8 grams, hence covered
by the imposable range of penalties under the
second paragraph of Section 20, as now modified,
the law provides that the penalty shall be taken
from said range "depending upon the quantity" of
the drug involved in the case. The penalty in said
second paragraph constitutes a complex one
composed of three distinct penalties, that
is, prision correccional, prision mayor,
and reclusion temporal. In such a situation, the
Code provides that each one shall form a period,
with the lightest of them being the minimum, the
next as the medium, and the most severe as the
maximum period.[58]
Ordinarily, and pursuant to Article 64 of the Code, the
mitigating and aggravating circumstances determine which
period of such complex penalty shall be imposed on the
accused. The peculiarity of the second paragraph of Section
20, however, is its specific mandate, above quoted, that the
penalty shall instead depend upon the quantity of the drug
subject of the criminal transaction.[59]Accordingly, by way of
exception to Article 77 of the Code and to subserve the
purpose of Section 20 of Republic Act No. 7659, each of the
aforesaid component penalties shall be considered as a
principal imposable penalty depending on the quantity of the
drug involved. Thereby, the modifying circumstances will not
altogether be disregarded. Since each component penalty of
the total complex penalty will have to be imposed separately
as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period
of that component penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section
20 in the context of our aforesaid disposition thereon that,
unless there are compelling reasons for a deviation, the
quantities of the drugs enumerated in its second paragraph be
divided into three, with the resulting quotient, and double or
treble the same, to be respectively the bases for allocating the
penalty proportionately among the three aforesaid periods
according to the severity thereof. Thus, if the marijuana
involved is below 250 grams, the penalty to be imposed shall
be prision correccional; from 250 to 499 grams, prision mayor;
and 500 to 749 grams, reclusion temporal. Parenthetically, fine
is imposed as a conjunctive penalty only if the penalty
is reclusion perpetua to death.[60]
Now, considering the minimal quantity of the marijuana
subject of the case at bar, the penalty of prision correccional is
consequently indicated but, again, another preliminary and
cognate issue has first to be resolved.
4. Prision correccional has a duration of 6 months
and 1 day to 6 years and, as a divisible penalty, it
consists of three periods as provided in the text of
and illustrated in the table provided by Article 76 of
the Code. The question is whether or not in
determining the penalty to be imposed, which is
here to be taken from the penalty of prision
correccional, the presence or absence of
mitigating, aggravating or other circumstances
modifying criminal liability should be taken into
account.
 We are not unaware of cases in the past wherein it was
held that, in imposing the penalty for offenses under special
laws, the rules on mitigating or aggravating circumstances
under the Revised Penal Code cannot and should not be
applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the
special laws involved provided their own specific penalties for
the offenses punished thereunder, and which penalties were
not taken from or with reference to those in the Revised Penal
Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or
maximum periods, it would consequently be impossible to
consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in
accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases
that the provisions of the Code on the graduation of penalties
by degrees could not be given supplementary application to
special laws, since the penalties in the latter were not
components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of
the Revised Penal Code to special laws, as provided in Article
10 of the former, cannot be invoked where there is a legal or
physical impossibility of, or a prohibition in the special law
against, such supplementary application.
The situation, however, is different where although the
offense is defined in and ostensibly punished under a special
law, the penalty therefor is actually taken from the Revised
Penal Code in its technical nomenclature and, necessarily,
with its duration, correlation and legal effects under the system
of penalties native to said Code. When, as in this case, the law
involved speaks of prision correccional, in its technical sense
under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.
For the nonce, we hold that in the instant case the
imposable penalty under Republic Act No. 6425, as amended
by Republic Act No. 7659, is prision correccional, to be taken
from the medium period thereof pursuant to Article 64 of the
Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.
5. At this juncture, a clarificatory discussion of the
developmental changes in the penalties imposed
for offenses under special laws would be
necessary.
Originally, those special laws, just as was the
conventional practice in the United States but differently from
the penalties provided in our Revised Penal Code and its
Spanish origins, provided for one specific penalty or a range of
penalties with definitive durations, such as imprisonment for
one year or for one to five years but without division into
periods or any technical statutory cognomen. This is the
special law contemplated in and referred to at the time laws
like the Indeterminate Sentence Law[61] were passed during the
American regime.
Subsequently, a different pattern emerged whereby a
special law would direct that an offense thereunder shall be
punished under the Revised Penal Code and in the same
manner provided therein. Inceptively, for instance,
Commonwealth Act No. 303[62] penalizing non-payment of
salaries and wages with the periodicity prescribed therein,
provided:
"SEC. 4. Failure of the employer to pay his employee or laborer as
required by section one of this Act, shall prima facie be considered a
fraud committed by such employer against his employee or laborer
by means of false pretenses similar to those mentioned in article
three hundred and fifteen, paragraph four, sub-paragraph two (a) of
the Revised Penal Code and shall be punished in the same manner
as therein provided."[63]
 Thereafter, special laws were enacted where the offenses
defined therein were specifically punished by the penalties as
technically named and understood in the Revised Penal Code.
These are exemplified by Republic Act No. 1700 (Anti-
Subversion Act) where the penalties ranged from arresto
mayor to death;[64] Presidential Decree No. 1612 (Anti-Fencing
Decree) where the penalties run from arresto mayor to prision
mayor; and Presidential Decree No. 1866 (illegal possession
and other prohibited acts involving firearms), the penalties
wherefor may involve prision mayor, reclusion
temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No.
6539 (Anti-Carnapping Act of 1972) where the penalty is
imprisonment for not less than 14 years and 8 months and not
more than 17 years and 4 months, when committed without
violence or intimidation of persons or force upon things; not
less than 17 years and 4 months and not more than 30 years,
when committed with violence against or intimidation of any
person, or force upon things; and life imprisonment to death,
when the owner, driver or occupant of the carnapped vehicle is
killed.
With respect to the first example, where the penalties
under the special law are different from and are without
reference or relation to those under the Revised Penal Code,
there can be no suppletory effect of the rules for the
application of penalties under said Code or by other relevant
statutory provisions based on or applicable only to said rules
for felonies under the Code. In this type of special law, the
legislative intendment is clear.
The same exclusionary rule would apply to the last given
example, Republic Act No. 6539. While it is true that the
penalty of 14 years and 8 months to 17 years and 4 months is
virtually equivalent to the duration of the medium period
of reclusion temporal, such technical term under the Revised
Penal Code is not given to that penalty for carnapping.
Besides, the other penalties for carnapping attended by the
qualifying circumstances stated in the law do not correspond
to those in the Code. The rules on penalties in the Code,
therefore, cannot suppletorily apply to Republic Act No. 6539
and special laws of the same formulation.
On the other hand, the rules for the application of
penalties and the correlative effects thereof under the Revised
Penal Code, as well as other statutory enactments founded
upon and applicable to such provisions of the Code, have
suppletory effect to the penalties under the former Republic
Act No. 1700 and those now provided under Presidential
Decrees Nos. 1612 and 1866. While these are special laws,
the fact that the penalties for offenses thereunder are those
provided for in the Revised Penal Code lucidly reveals the
statutory intent to give the related provisions on penalties for
felonies under the Code the corresponding application to said
special laws, in the absence of any express or implicit
proscription in these special laws. To hold otherwise would be
to sanction an indefensible judicial truncation of an integrated
system of penalties under the Code and its allied legislation,
which could never have been the intendment of Congress.
In People vs. Macatanda,[65] a prosecution under a special
law (Presidential Decree No. 533, otherwise known as the
Anti-Cattle Rustling Law of 1974), it was contended by the
prosecution that Article 64, paragraph 5, of the Revised Penal
Code should not apply to said special law. We said therein that
--
"We do not agree with the Solicitor General that P.D. 533 is a special
law entirely distinct from and unrelated to the Revised Penal
Code. From the nature of the penalty imposed which is in terms of
the classification and duration of penalties as prescribed in the
Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be
deemed as an amendment of the Revised Penal Code, with respect to
the offense of theft of large cattle (Art. 310) or otherwise to be
subject to applicable provisions thereof such as Article 104 of the
Revised Penal Code x x x. Article 64 of the same Code should,
likewise, be applicable, x x x." (Italics supplied.)
More particularly with regard to the suppletory effect of the
rules on penalties in the Revised Penal Code to Republic Act
No. 6425, in this case involving Article 63(2) of the Code, we
have this more recent pronouncement:
"x x x. Pointing out that as provided in Article 10 the provisions of
the Revised Penal Code shall be 'supplementary' to special laws, this
Court held that where the special law expressly grants to the court
discretion in applying the penalty prescribed for the offense, there is
no room for the application of the provisions of the Code. x x x
"The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623,
contains no explicit grant of discretion to the Court in the application
of the penalty prescribed by the law. In such case, the court must be
guided by the rules prescribed by the Revised Penal Code
concerning the application of penalties which distill the 'deep legal
thought and centuries of experience in the administration of criminal
laws.'” (Emphasis ours.)[66]
Under the aforestated considerations, in the case of the
Dangerous Drugs Act as now amended by Republic Act No.
7659 by the incorporation and prescription therein of the
technical penalties defined in and constituting integral parts of
the three scales of penalties in the Code,[67] with much more
reason should the provisions of said Code on the appreciation
and effects of all attendant modifying circumstances apply in
fixing the penalty. Likewise, the different kinds or
classifications of penalties and the rules for graduating such
penalties by degrees should have supplementary effect on
Republic Act No. 6425, except if they would result in
absurdities as will now be explained.
While not squarely in issue in this case, but because this
aspect is involved in the discussion on the role of modifying
circumstances, we have perforce to lay down the caveat that
mitigating circumstances should be considered and applied
only if they affect the periods and the degrees of the
penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation
and consequently determine the degree of the penalty, in
accordance with the rules in Article 61 of the Code as applied
to the scale of penalties in Article 71, are the stage of
execution of the crime and the nature of the participation of the
accused. However, under paragraph 5 of Article 64, when
there are two or more ordinary mitigating circumstances and
no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating
circumstances, as provided in Articles 67 and 68, can reduce
the penalty by one or two degrees, or even more. These
provisions of Articles 64(5), 67 and 68 should not apply in
toto in the determination of the proper penalty under the
aforestated second paragraph of Section 20 of Republic Act
No. 6425, to avoid anomalous results which could not have
been contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law
prescribes a penalty in some manner not specially provided for
in the four preceding paragraphs thereof, the courts shall
proceed by analogy therewith. Hence, when the penalty
prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree
shall likewise consist of as many penalties which follow the
former in the scale in Article 71. If this rule were to be applied,
and since the complex penalty in this case consists of three
discrete penalties in their full extent, that is, prision
correccional, prision mayor and reclusion temporal, then one
degree lower would be arresto menor, destierro and arresto
mayor. There could, however, be no further reduction by still
one or two degrees, which must each likewise consist of three
penalties, since only the penalties of fine and public censure
remain in the scale.
 The Court rules, therefore, that while modifying
circumstances may be appreciated to determine the periods of
the corresponding penalties, or even reduce the penalty
by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than prision
correccional. It is for this reason that the three component
penalties in the second paragraph of Section 20 shall each be
considered as an independent principal penalty, and that the
lowest penalty should in any event be prision correccional in
order not to depreciate the seriousness of drug
offenses.Interpretatio fienda est ut res magis valeat quam
pereat. Such interpretation is to be adopted so that the law
may continue to have efficacy rather than fail. A perfect judicial
solution cannot be forged from an imperfect law, which
impasse should now be the concern of and is accordingly
addressed to Congress.
6. The final query is whether or not the Indeterminate
Sentence Law is applicable to the case now before
us. Apparently it does, since drug offenses are not
included in nor has appellant committed any act
which would put him within the exceptions to said
law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of
course, that the penalty as ultimately resolved will
exceed one year of imprisonment.[68] The more
important aspect, however, is how the
indeterminate sentence shall be ascertained.
It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised
Penal Code, states that "if the offense is punished by any
other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same."
We hold that this quoted portion of the section indubitably
refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the
Revised Penal Code, as discussed in the preceding
illustrations, such that it may be said that the "offense is
punished" under that law.
There can be no sensible debate that the aforequoted rule
on indeterminate sentence for offenses under special laws
was necessary because of the nature of the former type of
penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the
Code, hence there could be no minimum "within the range of
the penalty next lower to that prescribed by the Code for the
offense," as is the rule for felonies therein. In the illustrative
examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last
examples. Furthermore, considering the vintage of Act No.
4103 as earlier noted, this holding is but an application and is
justified under the rule of contemporanea expositio.[69]
We repeat, Republic Act No. 6425, as now amended by
Republic Act No. 7659, has unqualifiedly adopted the penalties
under the Revised Penal Code in their technical terms, hence
with their technical signification and effects. In fact, for
purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said
law to arrive at prision correccional and Article 64 of the Code
to impose the same in the medium period. Such offense,
although provided for in a special law, is now in
effect punished by and under the Revised Penal Code.
Correlatively, to determine the minimum, we must apply the
first part of the aforesaid Section 1 which directs that "in
imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the
rules of said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the
Code for the offense." (Italics ours.)
A divergent pedantic application would not only be out of
context but also an admission of the hornbook maxim that qui
haeret in litera haeret in cortice. Fortunately, this Court has
never gone only skin-deep in its construction of Act No. 4103
by a mere literal appreciation of its provisions. Thus, with
regard to the phrase in Section 2 thereof excepting from its
coverage "persons convicted of offenses punished with death
penalty or life imprisonment," we have held that what is
considered is the penalty actually imposed and not the penalty
imposable under the law,[70] and that reclusion perpetua is
likewise embraced therein although what the law states is "life
imprisonment."
What irresistibly emerges from the preceding disquisition,
therefore, is that under the concurrence of the principles of
literal interpretation, which have been rationalized by
comparative decisions of this Court; of historical interpretation,
as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation,
considering the interrelation of the penalties in the Code as
supplemented by Act No. 4103 in an integrated scheme of
penalties, it follows that the minimum of the indeterminate
sentence in this case shall be the penalty next lower to that
prescribed for the offense. Thereby we shall have interpreted
the seeming ambiguity in Section 1 of Act No. 4103 in such a
way as to harmonize laws with laws, which is the best mode of
interpretation.[71]
The Indeterminate Sentence Law is a legal and social
measure of compassion, and should be liberally interpreted in
favor of the accused.[72] The "minimum" sentence is merely a
period at which, and not before, as a matter of grace and not
of right, the prisoner may merely be allowed to serve the
balance of his sentence outside of his confinement. [73] It does
not constitute the totality of the penalty since thereafter he still
has to continue serving the rest of his sentence under set
conditions. That minimum is only the period when the convict's
eligibility for parole may be considered. In fact, his release on
parole may readily be denied if he is found unworthy thereof,
or his reincarceration may be ordered on legal grounds, even if
he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar,
appellant should be begrudged the benefit of a minimum
sentence within the range of arresto mayor, the penalty next
lower to prision correccional which is the maximum range we
have fixed through the application of Articles 61 and 71 of the
Revised Penal Code. For, with fealty to the law, the court may
set the minimum sentence at 6 months of arresto mayor,
instead of 6 months and 1 day of prision correccional. The
difference, which could thereby even involve only one day, is
hardly worth the creation of an overrated tempest in the
judicial teapot.
ACCORDINGLY, under all the foregoing premises, the
judgment of conviction rendered by the court a quo against
accused-appellant Martin Simon y Sunga is AFFIRMED, but
with the MODIFICATION that he should be, as he hereby is,
sentenced to serve an indeterminate penalty of six (6) months
of arresto mayor, as the minimum, to six (6) years of prision
correccional, as the maximum thereof.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug,
Kapunan, and Mendoza, JJ., concur.
Feliciano and Quiason, JJ., join J. Davide, Jr., in his concurring
and dissenting opinion.
Bellosillo, J., on leave.
  People vs. Alilin, G.R. No. 84363, March 4, 1992, 206
[17]

*
SCRA 772.
 This case was initially raffled to the Second Division of the
Court but due to the novelty and importance of the  See People vs. Querrer, G.R. No. 97147, July 15, 1992,
[18]

issues raised on the effects of R.A. No. 7659 in 211 SCRA 502.
amending R.A. No. 6425, the same was referred to and
 People vs. Lati, G.R. No. 70393, April 17, 1990, 184 SCRA
[19]
accepted by the Court en banc pursuant to Circular No.
336.
2-89 and Bar Matter No. 209, as amended.
[1]  TSN, May 5, 1989, 5.
[20]
 Original Record, 2; Criminal Case No. G-2320, Regional
Trial Court, Branch 51, Guagua, Pampanga. [21]
 Sec. 3(m), Rule 131, Rules of Court.
[2]
 Ibid., 11.  See People vs. Labra, G.R. No. 98427, November 20,
[22]

1992, 215 SCRA 822.

[3]
 Ibid., 23.
[4]  TSN, August 18, 1989, 3.
[23]
 TSN, April 6, 1989, 5-32.
[24]
 Ibid., id., 12; Exhibit M, Folder of Exhibits.
[5]
 Ibid., May 5, 1989, 2.
[6]  People vs. Celiz, et al., G.R. No. 92849, October 20, 1992,
[25]
 Ibid., May 24, 1989, 18; May 5, 1989, 11.
214 SCRA 755.
[7]
 Ibid., May 24, 1989, 21-24.
 Brief for Accused-Appellant, 4-5; Rollo, 55-56.
[26]

[8]
 Ibid., June 14, 1989, 3-22. [27]
 People vs. Fernandez, G.R. No. 86495, May 13, 1992, 209
[9]
 Ibid., July 10, 1989, 5-26. SCRA 1.
[28]
[10]
 Ibid., July 17, 1989, 8-16.  Brief for Accused-Appellant, 6; Rollo, 57.
[11]
 Ibid., August 18, 1989, 36, 41-43, 47-49.  TSN, May 5, 1989, 7.
[29]

[30]
[12]
 Original Record, 174-175; per Judge Arsenio P. Roman.  People vs. Castiller, G.R. No. 87783, August 6, 1990, 188
SCRA 376.
[13]
 Brief for Accused-Appellant, 3; Rollo, 54.
[31]
[14]
 Brief for Accused-Appellant, 6-7; Rollo, 57-58.
 Exhibits F and G, Folder of Exhibits; TSN, July 10, 1989,
53.  Exhibit F, Folder of Exhibits.
[32]

[33]
[15]
 Original Record, 2.  Exhibit G, ibid.
[16]
 See People vs. Salamat, G.R. No. 103295, August 20,  People vs. Mauyao, G.R. No. 84525, April 6, 1992, 207
[34]

1993. SCRA 732.

  TSN, May 5, 1989, 11.
[35]
Manila Bulletin, Philippine Star, Malaya and Philippine
[36] Times Journal.
 Sec. 12(1), Art. III, 1987 Constitution.
 Title Five, Crimes Relative to Opium and Other Prohibited
[53]
 People vs. Rumeral, G.R. No. 86320, August 5, 1991, 200
[37]
Drugs.
SCRA 194.
 U.S. vs. Hocbo, 12 Phil. 304 (1908); U.S. vs. Parrone, 24
[54]
 People vs. Sibug, G.R. No. 108520, January 24, 1994.
[38]
Phil. 29 (1913); U.S. vs. Almencion, 25 Phil. 648
[39]
 Brief for Accused-Appellant, 11; Rollo, 62. (1913); People vs. Moran, et al., 44 Phil. 387 (1923);
People vs. Parel, 44 Phil. 437 (1923); People vs.
 People vs. Tandoy, G.R. No. 80505, December 4, 1990,
[40]
Tamayo, 61 Phil. 225 (1935).
192 SCRA 28.
[55]
 Article 62(5), Revised Penal Code.
 Cf. People vs. Cina, G.R. No. 88220, October 1, 1990, 190
[41]

SCRA 199.  See Harden vs. Director of Prisons, 81 Phil. 741 (1948);

[56]

Gumabon, et al. vs. Director of the Bureau of Prisons,

 People vs. Consuelo, G.R. No. 77755, April 18, 1990, 184
[42]
L-30026, January 30, 1971, 37 SCRA 420.
SCRA 402.
[57]
 Lopez and Sons, Inc. vs. Court of Tax Appeals, et al., 100
 TSN, July 10, 1989, 12-13.
[43]
Phil. 850 (1957).
[44]
 People vs. Eslaban, G.R. Nos. 101211-12, February 8, [58]
 Article 77, Revised Penal Code.
1993, 218 SCRA 534.
[45]
 This graduated scheme of penalties is not stated with
[59]

 TSN, June 14, 1989, 22. regard and does not apply to the quantities and their
 Ibid., August 18, 1989, 48.
[46] penalties provided in the first paragraph, the penalties
therein being the same regardless of whether the
[47]
 Ibid., July 17, 1989, 15-16. quantities exceed those specified therein.
 Ibid., October 23, 1988, 15-16.
[48] [60]
 Sec. 4, in relation to Sec. 20, R.A. No. 7659.
[49]
 Ibid., July 17, 1989, 22; October 23, 1988, 15.  Act No. 4103, effective on December 5, 1933.
[61]

 Ibid., July 10, 1989, 26-27.

[50] [62]
 Effective on June 9, 1938.
[51]
 Brief for Accused-Appellant, 4; Rollo, 55.  See a similar format in P.D. No. 330 which penalizes the
[63]

 Sec. 28 of Republic Act No. 7659 provides that it "shall take

[52] illegal taking of timber and forest products under Arts.
effect fifteen (15) days after its publication in two (2) 308, 309 and 310 of the Revised Penal Code by
national newspapers of general circulation," and it was reference.
so published in the December 16, 1993 issues of the  In fact, the penalty for officers or ranking leaders
[64]

was prision mayor to death, just like the penalty for

 treason by a resident alien under Article 114 of the  Interpretare et concordare leges legibus, est optimus
[71]

Revised Penal Code. interpretandi modus (Black's Law Dictionary, 4th ed.,

953).
 G.R. No. 51368, November 6, 1981, 109 SCRA 35.
[65]
[72]
[66]  People vs. Nang Kay, 88 Phil. 515 (1951).
 People vs. Tsang Hin Wai, et al., G.R. No. 66389,
September 8, 1986, 144 SCRA 22. In his sponsorship  24 C.J.S., Indeterminate Sentence, Sec. 1993, 1217-1218.
[73]

speech of Senate Bill No. 891 as Chairman of the

Special Committee on the Death Penalty, Senator
Arturo M. Tolentino made this enlightening explanation
as reported in the records of the Senate and which is
pertinent to our present discussion: "x x x Article 190,
referring to prohibited drugs, actually was repealed by
the enactment of a special law referring to drugs. But
since we were only amending the Revised Penal Code CONCURRING AND DISSENTING OPINION
in this proposed bill or draft, we reincorporated Article
190 in an amended form. x x x It reincorporates and
amends Article 190 on the importation, manufacture, DAVIDE, JR., J.:
sale, administration upon another, or distribution of
prohibited drugs, planting or cultivation of any plant, I am still unable to agree with the view that (a) in
which is a source of prohibited drugs, maintenance of a appropriate cases where the penalty to be imposed would
den, dive or similar place, as defined in the Dangerous be prision correccional pursuant to the second paragraph of
Drugs Law" (9th CRP, 1st Regular Session, Vol. 1, No. Section 20 of R.A. No. 6425, as amended by Section 17
71, 12). of R.A. No. 7659, the sentence to be meted out, applying the
Indeterminate Sentence Law (Act No. 4103, as
 See Articles 25, 70 and 71, Revised Penal Code.
[67]
amended), should be that whose minimum is within the range
[68]
 Section 2, Act No. 4103, as amended. of the penalty next lower, i.e., arresto mayor; and (b) the
presence of two or more mitigating circumstances not offset by
 Contemporaneous
[69]
exposition, or construction; a any mitigating circumstances or of a privileged mitigating
construction drawn from the time when, and the circumstance shall not reduce the penalty by one or two
circumstances under which, the subject-matter to be degrees if the penalty to be imposed, taking into account the
construed, such as a custom or statute, originated quantity of the dangerous drugs involved, would be prision
(Black's Law Dictionary, 4th ed., 390). correccional.
[70]
 People vs. Roque, et al., 90 Phil. 142 (1951); People vs.
Dimalanta, 92 Phil. 239 (1952); People vs. Moises, et I.
al., G.R. L-32495, August 13, 1975, 66 SCRA 151.
 The first view is based on the proposition that since R.A.
No. 7659 had unqualifiedly adopted the penalties under the
Revised Penal Code in their technical terms, hence also
their technical signification and effects, then what should
govern is the first part of Section 1 of the Indeterminate
Sentence Law which directs that:
"in imposing a prison sentence for an offense punished by the
Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which
shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum
which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense."
Elsewise stated, by the adoption of the penalties provided
for in the Revised Penal Code for the offenses penalized
under the Dangerous Drugs Act (R.A. No. 6425), as amended,
the latter offenses would now be considered as punished
under the Revised Penal Code for purposes of the
Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act No.
4103, as amended by Act No. 4225 and R.A. No. 4203) also
provides that:
"if the offense is punished by any other law, the court shall sentence t
he accused to an indeterminate sentence, the maximum term of whic
h shall not exceed the maximumfixed by said law and the minimum s
hall not be less than the minimum prescribed by the same."
(Emphasis supplied).
There are, therefore, two categories of offenses which
should be taken into account in the application of the
Indeterminate Sentence Law: (1) offenses punished by the
Revised Penal Code, and (2) offenses punished by other laws
(or special laws).
The offenses punished by the Revised Penal Code are
those defined and penalized in Book II thereof, which is thus
appropriately titled CRIMES AND PENALTIES. To simplify
further, a crime is
deemed punished under the Revised Penal Code if it is
defined by it, and none other, as a crime and is punished by a
penalty which is included in the classification of Penalties in
Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished
under any other law (or special law) if it is not defined and
penalized by the Revised Penal Code but by such other law.
It is thus clear that an offense
is punished by the Revised Penal Code if both its definition
and the penalty therefor are found in the said Code, and it is
deemed punished by a special law if its definition and the
penalty therefor are found in the special law. That the latter
imports or borrows from the Revised Penal Code its
nomenclature of penalties does not make an offense in the
special law punished by or punishable under the Revised
Penal Code. The reason is quite simple. It is still the special
law that defines the offense and imposes a penalty therefor,
although it adopts the Code's nomenclature of penalties. In
short, the mere use by a special law of a penalty found in the
Revised Penal Code can by no means make an offense
thereunder an offense "punished or punishable" by the
Revised Penal Code.
Thus, I cannot subscribe to the view that since R.A. No.
7659 had adopted the penalties prescribed by the Revised
Penal Code in drug cases, offenses related to drugs should
now be considered
as punished under the Revised Penal Code. If that were so,
then we are also bound, ineluctably, to declare that such
offenses are mala in se and to apply the Articles of the
Revised Penal Code regarding the stages of a felony (Article
6), the nature of participation (Article 16), accessory
penalties (Articles 40-45), application of penalties to principals,
accomplices, and accessories (Article 46 et seq.), complex
crimes (Article 48), and graduation of penalties (Article 61),
among others. We cannot do otherwise without being drawn to
an inconsistent posture which is extremely hard to justify.
I respectfully submit then that the adoption by the
Dangerous Drugs Act of the penalties in the Revised Penal
Code does not make an offense under the Dangerous Drugs
Act an offense punishedby the Revised Penal Code.
Consequently, where the proper penalty to be imposed under
Section 20 of the Dangerous Drugs Act is prision correccional,
then, applying the Indeterminate Sentence Law, the
indeterminate sentence to be meted on the accused should be
that whose minimum should not be less than the minimum
prescribed by the special law (the Dangerous Drugs Act), i.e.,
not lower than six (6) months and one (1) day of prision
correccional.
II.
The majority opinion holds the view that while the penalty
provided for in Section 20 of the Dangerous Drugs Act is a
complex one composed of three distinct penalties, viz., prision
correccional, prision mayor, and reclusion temporal, and that
pursuant to Article 77 of the Revised Penal Code, each should
form a period, with the lightest of them being the minimum, the
next as the medium, and the most severe as the maximum,
yet, considering that under the said second paragraph of
Section 20 the penalty depends on the quantity of the drug
subject of the criminal transaction, then by way of exception
to Article 77 of the Revised Penal Code and to subserve the
purpose of Section 20, as amended, each of the aforesaid
component penalties shall be considered as a principal penalty
depending on the quantity of the drug involved. Thereafter,
applying the modifying circumstances pursuant to Article 64 of
the Revised Penal Code, the proper period of the component
penalty shall then be fixed. To illustrate, if by the quantity of
the drugs involved (e.g., marijuana below 250 grams) the
proper principal penalty should be prision correccional, but
there is one mitigating and no aggravating circumstance, then
the penalty to be imposed should
be prision correccional in its minimum period. Yet, the majority
opinion puts a limit to such a rule. It declares:
"The Court rules, therefore, that while modifying circumstances may
be appreciated to determine the periods of the corresponding
penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or
lower than prision correccional. It is for this reason that the three
component penalties in the second paragraph of Section 20 shall
each be considered as an independent principal penalty, and that the
lowest penalty should in any event be prisioncorreccional in order
not to depreciate the seriousness of drug offenses."
Simply put, this rule would allow the reduction
from reclusion temporal -- if it is the penalty to be imposed on
the basis of the quantity of the drugs involved -- by two
degrees, or to prision correccional, if there are two or more
mitigating circumstances and no aggravating circumstance is
present (paragraph 5, Article 64, Revised Penal Code) or if
there is a privileged mitigating circumstance of, say,
minority (Article 68, Revised Penal Code), or under
circumstances covered by Article 69 of the Revised Penal
Code. Yet, if the proper penalty to be imposed is prision
mayor,regardless of the fact that a reduction by two degrees is
proper, it should only be reduced by one degree because the
rule does not allow a reduction beyond prision
correccional. Finally, if the proper penalty to be imposed
is prision correccional, no reduction at all would be allowed.
I find the justification for the rule to be arbitrary and unfair.
It is arbitrary because within the same second paragraph
involving the same range of penalty, we
both allow and disallow the application of Article 64(5), Article
68, and Article 69 of the Revised Penal Code. The reason for than that prescribed by law for the crime which he
the disallowance, viz., in order not to depreciate the committed.
seriousness of drug offenses, is unconvincing because
Section 20 of the Dangerous Drugs Act, as amended by R.A. 2.      Upon a person over fifteen and under eighteen
No. 7659, has in fact "depreciated" the seriousness of drug years of age the penalty next lower than that
offenses by providing quantity as basis for the determination of prescribed by law shall be imposed, but always in
the proper penalty and limiting fine only to cases punishable the proper period."
by reclusion perpetua to death. It is unfair because an accused
who is found guilty of possessing MORE dangerous drugs -- I do not think that as to the second paragraph of Section
say 500 to 749 grams of marijuana, in which case the penalty 20 of the Dangerous Drugs Act, as amended by Section 17 of
to be imposed would be reclusion temporal -- may only be R.A. No. 7659, we can be at liberty to apply the Revised Penal
sentenced to six (6) months and one (1) day of prision Code in one aspect and not to apply it in another.
correccional minimum because of privileged mitigating
circumstances. Yet, an accused who is found guilty of
possession of only one (1) gram of marijuana -- in which case
the penalty to be imposed is prision correccional -- would not
be entitled to a reduction thereof even if he has the same Batas.org 
number of privileged mitigating circumstances as the former
has.
Also, if the privileged mitigating circumstance happens to
be the minority of the accused, then he is entitled to the
reduction of the penalty as a matter of right pursuant to Article
68 of the Revised Penal Code, which reads:
"ART. 68. Penalty to be imposed upon a person under eighteen
years of age. -- When the offender is a minor under eighteen years
and his case is one coming under the provisions of the paragraph
next to the last of Article 80 of this Code, the following rules shall be
observed:

1.      Upon a person under fifteen but over nine years

of age, who is not exempted from liability by
reason of the court having declared that he acted
with discernment, a discretionary penalty shall be
imposed, but always lower by two degrees at least
 Supreme Court of the Philippines
675 Phil. 759  to P421,151.09. The petitioner's explanation for his failure to remit,
SPECIAL THIRD DIVISION
G.R. No. 183891, October 19, 2011
ROMARICO J. MENDOZA, PETITIONER, VS. PEOPLE OF
THE PHILIPPINES, RESPONDENT.
RESOLUTION
BRION, J.:
We resolve the motion for reconsideration filed by petitioner
Romarico J. Mendoza seeking the reversal of our Decision dated
August 3, 2010.  The Decision affirmed the petitioner's conviction
for his failure to remit the Social Security Service (SSS)
contributions of his employees.  The petitioner anchors the present
motion on his supposed inclusion within the coverage of Republic
Act (RA) No. 9903 or the Social Security Condonation Law of 2009,
whose passage the petitioner claims to be a supervening event in his
case.  He further invokes the equal protection clause in support of his
motion.
In our Decision dated August 3, 2010, we AFFIRMED, with
modification, the decree of conviction issued by both the trial and
appellate courts for the petitioner's violation of Section 22(a) and (d),
in relation to Section 28 of RA No. 8282 or the Social Security Act
of 1997.  To recall its highlights, our Decision emphasized that the
petitioner readily admitted during trial that he did not remit the SSS
premium contributions of his employees at Summa Alta Tierra
Industries, Inc. from August 1998 to July 1999, in the amount of
P239,756.80; inclusive of penalties, this unremitted amount totaled
which the trial court disbelieved, was that during this period, Summa
Alta Tierra Industries, Inc. shut down as a result of the general
decline in the economy. The petitioner pleaded good faith and lack
of criminal intent as his defenses.
We ruled that the decree of conviction was founded on proof beyond
reasonable doubt, based on the following considerations: first, the
remittance of employee contributions to the SSS is mandatory under
RA No. 8282; and second, the failure to comply with a special law
being malum prohibitum, the defenses of good faith and lack of
criminal intent are immaterial.
The petitioner further argued that since he was designated in
the Information as a "proprietor," he was without criminal liability
since "proprietors" are not among the corporate officers specifically
enumerated in Section 28(f) of RA No. 8282 to be criminally liable
for the violation of its provisions.  We rejected this argument based
on our ruling in Garcia v. Social Security Commission Legal and
Collection.[1]  We ruled that to sustain the petitioner's argument
would be to allow the unscrupulous to conveniently escape liability
merely through the creative use of managerial titles.
After taking into account the Indeterminate Penalty Law and Article
315 of the Revised Penal Code, we MODIFIED the penalty
originally imposed by the trial court[2] and, instead, decreed the
penalty of four (4) years and two (2) months of prision correccional,
as minimum, to twenty (20) years of reclusion temporal, as
maximum.
In the present motion for reconsideration, the petitioner points out
that pending his appeal with the Court of Appeals (CA), he
voluntarily paid the SSS the amount of P239,756.80 to settle his
delinquency.[3]  Note that the petitioner also gave notice of this
payment to the CA via a Motion for Reconsideration and a Motion
for New Trial.  Although the People did not contest the fact of
voluntary payment, the CA nevertheless denied the said motions.  Upfront, we reject the petitioner's claim that the prosecution failed to
The present motion for reconsideration rests on the following points:
First. On January 7, 2010, during the pendency of the petitioner's
case before the Court, then President Gloria Macapagal-Arroyo
signed RA No. 9903 into law. RA No. 9903 mandates the effective
withdrawal of all pending cases against employers who would remit
their delinquent contributions to the SSS within a specified
period, viz., within six months after the law's effectivity.[4] The
petitioner claims that in view of RA No. 9903 and its implementing
rules, the settlement of his delinquent contributions in 2007 entitles
him to an acquittal.  He invokes the equal protection clause in
support of his plea.
Second. The petitioner alternatively prays that should the Court find
his above argument wanting, he should still be acquitted since the
prosecution failed to prove all the elements of the crime charged.
Third. The petitioner prays that a fine be imposed, not
imprisonment, should he be found guilty.
The Solicitor General filed a Manifestation In Lieu of
Comment and claims that the passage of RA No. 9903 constituted a
supervening event in the petitioner's case that supports the
petitioner's acquittal "[a]fter a conscientious review of the case." [5]
THE COURT'S RULING  employers -- and only those employers -- with unpaid SSS
The petitioner's arguments supporting his prayer for acquittal fail to
convince us. However, we find basis to allow waiver of the
petitioner's liability for accrued penalties.
The petitioner's liability for the
crime is a settled matter
prove all the elements of the crime charged.  This is a matter that has
been resolved in our Decision, and the petitioner did not raise
anything substantial to merit the reversal of our finding of guilt. To
reiterate, the petitioner's conviction was based on his admission that
he failed to remit his employees' contribution to the SSS.
The petitioner cannot benefit from the terms of RA No. 9903,
which condone only employers who pay their delinquencies 
within six months from the law's effectivity
We note that the petitioner does not ask for the reversal of his
conviction based on the authority of RA No. 9903; he avoids making
a straightforward claim because this law plainly does not apply to
him or to others in the same situation. The clear intent of the law is
to grant condonation only to employers with delinquent contributions
or pending cases for their delinquencies and who pay their
delinquencies within the six (6)-month period set by the law.  Mere
payment of unpaid contributions does not suffice; it is payment
within, and only within, the six (6)-month availment period that
triggers the applicability of RA No. 9903.
True, the petitioner's case was pending with us when RA No. 9903
was passed. Unfortunately for him, he paid his delinquent SSS
contributions in 2007.  By paying outside of the availment period,
the petitioner effectively placed himself outside the benevolent
sphere of RA No. 9903.  This is how the law is written: it condones
contributions or with pending cases who pay within the six (6)-
month period following the law's date of effectivity. Dura lex, sed
lex. 

The petitioner's awareness that RA No. 9903 operates as discussed
above is apparent in his plea for equal protection.  In his motion, he
states that ?
[he] is entitled under the equal protection clause to the dismissal of
the case against him since he had already paid the subject delinquent
contributions due to the SSS which accepted the payment as borne
by the official receipt it issued (please see Annex "A"). The equal
protection clause requires that similar subjects, [sic] should not be
treated differently, so as to give undue favor to some and unjustly
discriminate against others. The petitioner is no more no less in the
same situation as the employer who would enjoy freedom from
criminal prosecution upon payment in full of the delinquent
contributions due and payable to the SSS within six months from the
effectivity of Republic Act No. 9903.[6]
The Court cannot amplify the scope of RA No. 9903 on the ground
of equal protection, and acquit the petitioner and other delinquent
employers like him; it would in essence be an amendment of RA No.
9903, an act of judicial legislation abjured by the trias
politica principle.[7]
RA No. 9903 creates two classifications of employers delinquent in
remitting the SSS contributions of their employees: (1) those
delinquent employers who pay within the six (6)-month period (the
former group), and (2) those delinquent employers who
pay outside of this availment period (the latter group).  The creation
of these two classes is obvious and unavoidable when Section 2 and
the last proviso of Section 4[8] of the law are read together.  The same
provisions show the law's intent to limit the benefit of condonation to
the former group only; had RA No. 9903 likewise intended to benefit
the latter group, which includes the petitioner, it would have
expressly declared so.  Laws granting condonation constitute an act
of benevolence on the government's part, similar to tax amnesty
laws; their terms are strictly construed against the applicants.  Since
the law itself excludes the class of employers to which the petitioner
belongs, no ground exists to justify his acquittal. An implementing
rule or regulation must conform to and be consistent with the
provisions of the enabling statute; it cannot amend the law either by
abridging or expanding its scope.[9]
For the same reason, we cannot grant the petitioner's prayer to
impose a fine in lieu of imprisonment; neither RA No. 8282 nor RA
No. 9903 authorizes the Court to exercise this option.
On the matter of equal protection, we stated in Tolentino v. Board of
Accountancy, et al.[10] that the guarantee simply means "that no
person or class of persons shall be denied the same protection of the
laws which is enjoyed by other persons or other classes in the same
place and in like circumstances."  In People v. Cayat,[11] we further
summarized the jurisprudence on equal protection in this wise:
It is an established principle of constitutional law that the guaranty of
the equal protection of the laws is not violated by a legislation based
on reasonable classification. And the classification, to be reasonable,
(1) must rest on substantial distinctions; (2) must be germane to the
purposes of the law; (3) must not be limited to existing conditions
only; and (4) must apply equally to all members of the same class.
The difference in the dates of payment of delinquent contributions
provides a substantial distinction between the two classes of
employers.  In limiting the benefits of RA No. 9903 to delinquent
employers who pay within the six (6)-month period, the legislature
refused to allow a sweeping, non-discriminatory condonation
to all delinquent employers, lest the policy behind RA No. 8282 be
undermined.
The petitioner is entitled to a waiver of his accrued penalties
Despite our discussion above, the petitioner's move to have
our Decision reconsidered is not entirely futile.  The one benefit the
petitioner can obtain from RA No. 9903 is the waiver of his accrued
penalties, which remain unpaid in the amount of P181,394.29. This
waiver is derived from the last proviso of Section 4 of RA No. 9903:
Provided, further, That for reason of equity, employers who settled
arrears in contributions before the effectivity of this Act shall
likewise have their accrued penalties waived.
This proviso is applicable to the petitioner who settled his
contributions long before the passage of the law. Applied to the
petitioner, therefore, RA No. 9903 only works to allow a waiver of
his accrued penalties, but not the reversal of his conviction.
Referral to the Chief Executive for possible
exercise of executive clemency
We realize that with the affirmation of the petitioner's conviction for
violation of RA No. 8282, he stands to suffer imprisonment for four
(4) years and two (2) months of prision correccional, as minimum,
to twenty (20) years of reclusion temporal, as maximum,
notwithstanding the payment of his delinquent contribution.
Under Article 5 of the Revised Penal Code,  the courts are bound to
[12]
apply the law as it is and impose the proper penalty, no matter how
harsh it might be. The same provision, however, gives the Court the
discretion to recommend to the President actions it deems
appropriate but are beyond its power when it considers the penalty
imposed as excessive.   Although the petitioner was convicted under
a special penal law, the Court is not precluded from giving the
Revised Penal Code suppletory application in light of Article 10 [13] of
the same Code and our ruling in People v. Simon.[14]
WHEREFORE, the Court PARTIALLY GRANTS petitioner
Romarico J. Mendoza's motion for reconsideration.  The Court
AFFIRMS the petitioner's conviction for violation of Section 22(a)
and (d), in relation to Section 28 of Republic Act No. 8282, and the
petitioner is thus sentenced to an indeterminate prison term of four
(4) years and two (2) months of prision correccional, as minimum,
to twenty (20) years of reclusion temporal, as maximum.  In light of
Section 4 of Republic Act No. 9903, the petitioner's liability for
accrued penalties is considered WAIVED.   Considering the
circumstances of the case, the Court transmits the case to the Chief
Executive, through the Department of Justice,
and RECOMMENDSthe grant of executive clemency to the
petitioner.
SO ORDERED.
Peralta, Bersamin, Abad, and Villarama, Jr., JJ., concur.
 G.R. No. 170735, December 17, 2007, 540 SCRA 456.
[1]
 The penalty originally imposed was six (6) years and one (1) day
[2]
to eight (8) years of imprisonment.
 SSS Special Bank Receipt No. 918224 is attached to the present
[3]
motion as Annex "A"; rollo, p. 278.
 Section 2. Condonation of Penalty. - Any employer who is
[4]
delinquent or has not remitted all contributions due and payable to
the Social Security System (SSS), including those with pending
cases either before the Social Security Commission, courts or Office
of the Prosecutor involving collection of contributions and/or
penalties, may within six (6) months from the effectivity of this Act:
(a) remit said contributions; or (b) submit a proposal to pay the same
in installments, subject to the implementing rules and regulations
which the Social Security Commission may prescribe: Provided,
That the delinquent employer submits the corresponding collection
lists together with the remittance or proposal to pay installments:
Provided, further, That upon approval and payment in full or in
installments of contributions due and payable to the SSS, all such
pending cases filed against the employer shall be withdrawn without
prejudice to the refiling of the case in the event the employer fails to
remit in full the required delinquent contributions or defaults in the
payment of any installment under the approved proposal.
 Rollo, p. 355.
[5]
excessive penalties. -- Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable by
law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which
induce the court to believe that said act should be made the subject of
legislation.

In the same way, the court shall submit to the Chief Executive,
 Citing Philippine Judges Association v. Prado, G.R. No. 105371,
[6]
through the Department of Justice, such statement as may be deemed
November 11, 1993, 227 SCRA 70, id. at 563-564. proper, without suspending the execution of the sentence, when a
strict enforcement of the provisions of this Code would result in the
 Refers to the principle of separation of powers among the three
[7]
imposition of a clearly excessive penalty, taking into consideration
branches of the government. the degree of malice and the injury caused by the offense.

 Section 4. Effectivity of Condonation. - The penalty provided

[8]
 Article 10. Offenses not subject to the provisions of this Code. --
[13]

under Section 22(a) of Republic Act No. 8282 shall be condoned by
virtue of this Act when and until all the delinquent contributions are
remitted by the employer to the SSS: Provided, That, in case the
employer fails to remit in full the required delinquent contributions,
or defaults in the payment of any installment under the approved
proposal, within the availment period provided in this Act, the
Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall
be supplementary to such laws, unless the latter should specially
provide the contrary.
 G.R. No. 93028, July 29, 1994, 234 SCRA 555, 574, which states:
[14]

penalties are deemed reimposed from the time the contributions first
become due, to accrue until the delinquent account is paid in full:
Provided, further, That for reason of equity, employers who settled
arrears in contributions before the effectivity of this Act shall
likewise have their accrued penalties waived. [italics ours]
The suppletory effect of the Revised Penal Code to special laws, as
provided in Article 10 of the former, cannot be invoked where there
is a legal or physical impossibility of, or a prohibition in the special
law against, such supplementary application.

 Perez v. Philippine Telegraph and Telephone Company, G.R. No.

[9]
Since neither RA No. 8282 nor RA No. 9903 prohibits the
152048, April 7, 2009, 584 SCRA 110, 121-122. application of the Revised Penal Code, the provisions of the Code
may be applied suppletorily.
[10]
 90 Phil. 83, 90 (1951).
[11]
 68 Phil. 12, 18 (1939).
Batas.org 
 Article 5. Duty of the court in connection with acts which should
[12]

be repressed but which are not covered by the law, and in cases of