EN BANC

G.R. No. L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the
very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence
as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the
following statement of the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same
place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house
situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house.
This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were
in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but
one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any
kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some
trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was
convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber
or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee
by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow
had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events,
it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a
common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out,
was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed
by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers
who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in
a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a
knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident,
had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity.
Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants
employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and
Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps
fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who
immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was
"a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.
No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of
mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give
his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the
wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the
fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx             xxx             xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal
liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous
thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to
resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to
desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the
night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been
wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for
the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of
the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful
aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real
"necessity" for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a
mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be,
but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he
committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no
criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which
under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent)
"cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under
the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one
voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133
and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or
criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal
Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent
in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to
the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of
article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the
United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that
malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly
indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence
of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently
committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little
distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness
is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and,
again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very
well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the
criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a
corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act
committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act
is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there
can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when
the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless
admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in
order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall
within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which
it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the
will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription
of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of
the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of
criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:
 . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act
defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision
of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors
therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be
punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall
constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty
of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules
prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those
contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they
may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its
provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and
imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in
English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means
little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing
lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not
great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying
rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed
"voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a
criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter
mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations
from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between
private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from
a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness,
without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people
in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as
probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has
supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his
intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others
of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or
ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we
 hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of
mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who
differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve
punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a
punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat
of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of
wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the
voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines,
because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the
adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could
not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of
the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to
the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is
clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that
ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists
only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing
which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with
otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti
excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,
190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have
proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or
negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That
is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined
by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a
killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness
he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent
person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite
harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to
him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus
supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and
disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his
money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were
such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime
of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of
homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by
law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under
that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it
will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his
hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who
has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man
say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine
must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a
doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try
the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because
the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly
entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder,
because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and
gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving
the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion
resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law,
whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code?
The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation,
and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and
87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by
the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the
sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was
nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed
their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and
when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with
which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally
necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong
aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they
might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts
that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal
Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a
point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you
money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the
voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to
his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined,"
realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired
from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just
self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of
Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the
reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day
of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was
acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the
 circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his
window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his
money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four
individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was
found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-
defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from
criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve
months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p.
128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose
assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal
intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to
have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted
by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under
his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime
with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of
homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was
wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on
the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking
with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of
one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of
P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,

vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the
Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder.

From the records, we gathered the following facts.

In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's
house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan.
Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he
wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men,
otherwise, he would also be killed.

At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms,
arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed
the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out,
however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the
room when the accused fired the shots. No one was hit by the gun fire.

Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises,
they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not
injured". 2

After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals,
holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him
liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides:

Art. 4(2). CRIMINAL RESPONSIBILITY. — Criminal Responsibility shall be incurred:

xxx xxx xxx

2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of
its accomplishment or on account of the employment of inadequate or ineffectual means.

Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the
crime inherently impossible.

On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to
constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to
the Petition, respondent pointed out that:

. . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised
Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.)
Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3

Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where:

. . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing
the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated
shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally
liable. 5

This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in
the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with
means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to
punish such criminal tendencies. 9

Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission
of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10
That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of
this petition. To be impossible under this clause, the act intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible
crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus:

Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation
of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not amount to a crime. 14

The impossibility of killing a person already dead 15 falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the
consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to
steal the latter's wallet and finds the pocket empty. 17

The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the
victim was not present in said place and thus, the petitioner failed to accomplish his end.

One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed
and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The
accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that:

The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof,
renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an
attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown
to the aggressor at the time, the criminal attempt is committed.

In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by
the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that:

It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance
that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has
application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for
the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the
crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not
within the control of the party.

In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of
the case, the court quoted Mr. Justice Bishop, to wit:

It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the
protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended
(attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be
carried out, the incipient act which the law of attempt takes cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside.
However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder.

The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of
attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference
between the Philippine and the American laws regarding the concept and appreciation of impossible crimes.

In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable.
Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were
attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two
categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that:
. . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the
circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission.

Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs.
Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the
act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the
latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's
knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the
contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal
Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the
Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be
criminally liable for an act which was not made criminal by law. Further, it said:

Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of
legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law
of criminal attempt.

To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other
hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime — neither for an
attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime.
Instead, it only recognizes impossibility as a defense to a crime charge — that is, attempt.

This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the
criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase "inherent impossibility" that is found in
Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex
non distinguit nec nos distinguere debemos.

The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of
accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime.

To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally
liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident
independent of the actor's will which is an element of attempted and frustrated felonies.

WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding
Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and
penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of
criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the
accessory penalties provided by the law, and to pay the costs.

SO ORDERED.

Feliciano, Regalado and Nocon, JJ., concur.

Narvasa, C.J., is on leave.

EN BANC

G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.

x-----------------------------------------------x

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

x-----------------------------------------------x

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for public office, students of secondary and
tertiary schools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain
offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to safeguard the quality of the test results. x x x The drug testing shall
employ, among others, two (2) testing methods, the screening test which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive screening test. x x x The following shall be subjected to undergo drug
testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the related rules and
regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with
administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and
pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less
than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory
drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations
on the mandatory drug testing of candidates for public office in connection with the May 10, 2004 synchronized national and local
elections. The pertinent portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates they are electing
and they will be assured that only those who can serve with utmost responsibility, integrity, loyalty, and efficiency would be elected x
x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004 Synchronized National and
Local Elections shall undergo mandatory drug test in government forensic laboratories or any drug testing laboratories monitored and
accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and employees
concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the [COMELEC] shall prepare
two separate lists of candidates. The first list shall consist of those candidates who complied with the mandatory drug test while the
second list shall consist of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any public office shall
enter upon the duties of his office until he has undergone mandatory drug test and filed with the offices enumerated under Section 2
hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004 elections,1 filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution
No. 6486 dated December 23, 2003 for being unconstitutional in that they impose a qualification for candidates for senators in
addition to those already provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No.
6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day of the election, is at
least thirty - five years of age, able to read and write, a registered voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a candidate for, elected to,
and be a member of the Senate. He says that both the Congress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486,
a senatorial aspirant, among other candidates, to undergo a mandatory drug test, create an additional qualification that all candidates
for senator must first be certified as drug free. He adds that there is no provision in the Constitution authorizing the Congress or
COMELEC to expand the qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g)
of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm. For one, the provisions constitute undue delegation of
legislative power when they give unbridled discretion to schools and employers to determine the manner of drug testing. For another,
the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or an employee deemed
undesirable. And for a third, a person's constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65
that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the
right against unreasonable search and seizure, and the right against self - incrimination, and for being contrary to the due process and
equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue.
As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident amounting to a violation of the constitutional
rights mentioned in their separate petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the
statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the Court may refuse to exercise judicial
review unless the constitutional question is brought before it by a party having the requisite standing to challenge it.4 To have
standing, one must establish that he or she has suffered some actual or threatened injury as a result of the allegedly illegal conduct of
the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overarching
significance to society, or of paramount public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate
for the May 10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject matter of the petition,
among other preliminary considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing
primarily to the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for candidates for senator?
Corollarily, can Congress enact a law prescribing qualifications for candidates for senator in addition to those laid down by the
Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs violate the right to
privacy, the right against unreasonable searches and seizure, and the equal protection clause? Or do they constitute undue delegation
of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for senator need not possess any other
qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or
otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate,7 or alter
or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution.8 In the
discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of
the Constitution. Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927, in Government v.
Springer, the Court has defined, in the abstract, the limits on legislative power in the following wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments acting under delegated authority, the powers of each of the departments
x x x are limited and confined within the four walls of the constitution or the charter, and each department can only exercise such
powers as are necessarily implied from the given powers. The Constitution is the shore of legislative authority against which the
waves of legislative enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations which circumscribe
both the exercise of the power itself and the allowable subjects of legislation.11 The substantive constitutional limitations are chiefly
found in the Bill of Rights12 and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of
candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such additional qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g) unmistakably requires a candidate for
senator to be certified illegal - drug clean, obviously as a pre - condition to the validity of a certificate of candidacy for senator or, with
like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC resolution
completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his office until he has
undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing COMELEC
Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.
Whether or not the drug - free bar set up under the challenged provision is to be hurdled before or after election is really of no
moment, as getting elected would be of little value if one cannot assume office for non - compliance with the drug - testing
requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non -
compliance with the drug test imposition is a disqualifying factor or would work to nullify a certificate of candidacy. This argument
may be accorded plausibility if the drug test requirement is optional. But the particular section of the law, without exception, made
drug - testing on those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse consequences
for not adhering to the statutory command. And since the provision deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for by its terms, it was
intended to cover only the May 10, 2004 synchronized elections and the candidates running in that electoral event. Nonetheless, to
obviate repetition, the Court deems it appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having infringed
the constitutional provision defining the qualification or eligibility requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless arrangement. The objective is to stamp out illegal drug and safeguard in
the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory
purpose, per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive and unrelenting
campaign against the trafficking and use of dangerous drugs x x x through an integrated system of planning, implementation and
enforcement of anti - drug abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as
those found positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and 55 of RA 9165 are clear on
this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug dependent or any person
who violates Section 15 of this Act may, by himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x
for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court
which shall order that the applicant be examined for drug dependency. If the examination x x x results in the certification that the
applicant is a drug dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by
the Board x x x.

xxxx
Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent under the voluntary
submission program, who is finally discharged from confinement, shall be exempt from the criminal liability under Section 15 of this
Act subject to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive effects of drugs.
Maturing nervous systems of the young are more critically impaired by intoxicants and are more inclined to drug dependency. Their
recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the guarantee against
unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the right to privacy has long come into its
own, this case appears to be the first time that the validity of a state - decreed search or intrusion through the medium of mandatory
random drug testing among students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing among school children,
we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of Education of Independent School District
No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases
involving the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective institutions following
the discovery of frequent drug use by school athletes. After consultation with the parents, they required random urinalysis drug testing
for the school's athletes. James Acton, a high school student, was denied participation in the football program after he refused to
undertake the urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter alia, the
Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1) schools stand in loco
parentis over their students; (2) school children, while not shedding their constitutional rights at the school gate, have less privacy
rights; (3) athletes have less privacy rights than non - athletes since the former observe communal undress before and after sports
events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school supervision and
regulation; (5) requiring urine samples does not invade a student's privacy since a student need not undress for this kind of drug
testing; and (6) there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US Supreme
Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug -
testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching band, and academic team declined to
undergo a drug test and averred that the drug - testing policy made to apply to non - athletes violated the Fourth and 14th
Amendments. As Earls argued, unlike athletes who routinely undergo physical examinations and undress before their peers in locker
rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on the basis of the
school's custodial responsibility and authority. In so ruling, said court made no distinction between a non - athlete and an athlete. It
ratiocinated that schools and teachers act in place of the parents with a similar interest and duty of safeguarding the health of the
students. And in holding that the school could implement its random drug - testing policy, the Court hinted that such a test was a kind
of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and
are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to
safeguard the health and well - being of their students and may adopt such measures as may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure,
the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well - being of the people,21
particularly the youth and school children who usually end up as victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools is not only acceptable but may
even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing
efficient enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified by the fact
that the effects of a drug - infested school are visited not just upon the users, but upon the entire student body and faculty.22 Needless
to stress, the random testing scheme provided under the law argues against the idea that the testing aims to incriminate unsuspecting
individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for
officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard
that petitioner SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug
testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art.
III, Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not merit
serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of mandatory drug tests
in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's
constitutional right to privacy and right against unreasonable search and seizure. They are quoted extensively hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private activities in such a way as to cause humiliation to a person's ordinary
sensibilities. 27 And while there has been general agreement as to the basic function of the guarantee against unwarranted search,
"translation of the abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the decision of
particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities are agreed though that the right to
privacy yields to certain paramount rights of the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness" is the touchstone of
the validity of a government search or intrusion.30 And whether a search at issue hews to the reasonableness standard is judged by the
balancing of the government - mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given
that the drug - testing policy for employees--and students for that matter--under RA 9165 is in the nature of administrative search
needing what was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not required
or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged administrative search in
question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the
backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline
and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a question form, is the
scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the enabling law authorizing a search "narrowly
drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and regulations (IRR), as
couched, contain provisions specifically directed towards preventing a situation that would unduly embarrass the employees or place
them under a humiliating experience. While every officer and employee in a private establishment is under the law deemed
forewarned that he or she may be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is
to discourage drug use by not telling in advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165
itself prescribes what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random
drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as possible the employee's
privacy and dignity. As to the mechanics of the test, the law specifies that the procedure shall employ two testing methods, i.e., the
screening test and the confirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In
addition, the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that the "drug test
result and the records shall be [kept] confidential subject to the usual accepted practices to protect the confidentiality of the test
results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting agencies any information or
evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing.
All told, therefore, the intrusion into the employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly
against embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well - being of the
citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to achieve this through the medium,
among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatory random drug
test.36 To the Court, the need for drug testing to at least minimize illegal drug use is substantial enough to override the individual's
privacy interest under the premises. The Court can consider that the illegal drug menace cuts across gender, age group, and social -
economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market,
would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug problem has
hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stance
with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory random drug test to be an effective way
of preventing and deterring drug use among employees in private offices, the threat of detection by random testing being higher than
other modes. The Court holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees, the compelling state
concern likely to be met by the search, and the well - defined limits set forth in the law to properly guide authorities in the conduct of
the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and
restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the
public service.37 And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test
for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with
utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power hardly commends
itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to
schools and employers to determine the manner of drug testing. Sec. 36 expressly provides how drug testing for students of secondary
and tertiary schools and officers/employees of public/private offices should be conducted. It enumerates the persons who shall undergo
drug testing. In the case of students, the testing shall be in accordance with the school rules as contained in the student handbook and
with notice to parents. On the part of officers/employees, the testing shall take into account the company's work rules. In either case,
the random procedure shall be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of the Interior and
Local Government, Department of Education, and Department of Labor and Employment, among other agencies, the IRR necessary to
enforce the law. In net effect then, the participation of schools and offices in the drug testing scheme shall always be subject to the IRR
of RA 9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine how often, under what
conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the increasing
complexity of the task of the government and the increasing inability of the legislature to cope directly with the many problems
demanding its attention, resort to delegation of power, or entrusting to administrative agencies the power of subordinate legislation,
has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the constitutional viability of the mandatory, random, and suspicionless drug testing
for students emanates primarily from the waiver by the students of their right to privacy when they seek entry to the school, and from
their voluntarily submitting their persons to the parental authority of school authorities. In the case of private and public employees,
the constitutional soundness of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug
test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses
punishable with six (6) years and one (1) day imprisonment. The operative concepts in the mandatory drug testing are "randomness"
and "suspicionless." In the case of persons charged with a crime before the prosecutor's office, a mandatory drug testing can never be
random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal
complaint. They are not randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are
charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the
prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused is a blatant attempt to harness a
medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a
persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by
declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned
agencies are, accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES - SANTIAGO

Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA - MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO - NAZARIO

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO - DE CASTRO

Associate Justice
ARTURO D. BRION
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice